Alternate Supreme Courts Thread

[Jackson Lennock]

I think your assessment here is right, but I would say that Souter being deferential and saying "I hate DC, but you actually need to be home with John" probably has the slight edge. It's plausible to me that we see the 2005 double opening happening at the same time.

My thinking here is Kerry probably names Garland to replace O'Connor, but there may be a desire to name a woman. What is your thinking behind Kagan replacing O'Connor? Are you assuming she becomes Solicitor General in Jan. 2005 ITTL?

One potential way I think the Republican majority handles this is by letting Kerry name older justices under the assumption they won't be around for a long time. In particular, I think you could see Breyer elevated to CJ. He's popular among his fellow justices, seen as more moderate than his liberal colleagues, and 67 years old. The assumption would be that his service would not be long enough to seriously move the Court to the left.

Of course, that leaves Kerry with three appointments, which may be too much for Kerry to want to take on. (Potentially: Sotomayor to replace O'Connor, Breyer to replace Rehnquist, and Garland to replace Breyer). I'm not sure what Kerry's appetite might be for that kind of musical chairs. Amalya Kearse, who is about Breyer's age, might also be a suitable choice to replace O'Connor given Republicans would expect the seat to be open in 5-15 years.

Then, we likely see Souter step down in 2006 and there's a similar back-and-forth process. Cabranés is also a natural choice here. So, if it's Garland in 2005, it's probably Cabranés in 06, or vice versa.

I agree with you: Does Kerry want to elevate Breyer considering that would mean another nomination? There would have to be hearings for Breyer, the replacement for Souter/O'Connor, and the replacement for Breyer as Associate Justice. It's just one more thing to do. Breyer also seems like the guy who would move more to the middle as Chief Justice because of institutional concerns (similar to Rehnquist, Burger, and Roberts).

I think Kerry would want to name a woman, which gives Kagan the edge over Garland. I went with Kagan because she was mentioned as a Kerry name OTL, would have been Dean of Harvard Law for two years by mid-2005, had already been a Court of Appeals Clerk (Abner Mikva), a Supreme Court Clerk (Thurgood Marshall), Special Counsel for the Senate Judiciary Committee, White House Counsel, and Deputy Director of the White House Policy Counsel. It's probably good enough, especially given the GOP Senate. She'd attract right of center supporters easily. Otherwise, I can't see the GOP signing off on Sotomayor (51). Kearse (62 o 63) would be an easy confirmation.

I'm just not sure if Kerry could rally support on the left for Kearse. But Kerry might also just not want to deal with Court fights when stuff like Katrina, Iraq, etc. happens.

If O'Connor retires first and Breyer is Chief

CJ: Breyer (Rehnquist)
AJ: Stevens
AJ: Scalia
AJ: Kennedy
AJ: Thomas
AJ: Ginsburg
AJ: Stevens
AJ: Kagan (O'Connor)
AJ: Garland (Breyer)
AJ: Cabranes (Souter)

2 Conservatives: Scalia, Thomas
1 Moderate Conservative: Kennedy
1 Centrist: Cabranes
3 Moderate Liberals: Breyer, Kagan, Garland
2 Liberals: Stevens, Ginsburg

I'm fairly certain that Breyer would be the swing Justice here.


If Stevens retires in 2007, the GOP has a Senate supermajority most likely. Does he retire when there would at least be a centrist to replace him, or would he risk a very conservative replacement by being to stubborn to retire sooner? Kearse is a possible replacement there. Reid might pitch Kerry on elevating Brian Sandoval (who Kerry would appoint to the District Court in 2005 for Reid to keep Sandoval from challenging Reid's son for office in 2006). Two years on the District Court plus two years as State AG isn't exactly a Supreme Court resume, but he'd be confirmable at least.

2 Conservatives: Scalia, Thomas
1 Moderate Conservative: Kennedy
2 Centrists: Cabranes, Sandoval (or some other centrist)
3 Moderate Liberals: Breyer, Kagan, Garland
1 Liberal: Ginsburg


If Stevens waits until 2009 or 2010, he gets replaced by a Republican appointee by a GOP President with an even bigger Senate majority due to the 2008 crisis-induced coattails. Names include J Michael Luttig (55/56), John Roberts (54/55), Sam Alito (59/60), Jeff Sutton (49/50), Consuelo Callahan (59/60), Edith Jones (60/61), Priscilla Owen (56/57), or Janice Rogers Brown (61/62). My guess is Sutton, Roberts, or Luttig get the nod because of age.

3 Conservatives: Scalia, Thomas, (???)
1 Moderate Conservative: Kennedy
1 Centrist: Cabranes
3 Moderate Liberals: Breyer, Kagan, Garland
1 Liberal: Ginsburg

 

[Vidal]

I agree with you: Does Kerry want to elevate Breyer considering that would mean another nomination? There would have to be hearings for Breyer, the replacement for Souter/O'Connor, and the replacement for Breyer as Associate Justice. It's just one more thing to do. Breyer also seems like the guy who would move more to the middle as Chief Justice because of institutional concerns (similar to Rehnquist, Burger, and Roberts).

I think Kerry would want to name a woman, which gives Kagan the edge over Garland. I went with Kagan because she was mentioned as a Kerry name OTL, would have been Dean of Harvard Law for two years by mid-2005, had already been a Court of Appeals Clerk (Abner Mikva), a Supreme Court Clerk (Thurgood Marshall), Special Counsel for the Senate Judiciary Committee, White House Counsel, and Deputy Director of the White House Policy Counsel. It's probably good enough, especially given the GOP Senate. She'd attract right of center supporters easily. Otherwise, I can't see the GOP signing off on Sotomayor (51).

What is your thinking behind Kagan getting GOP support? She got less than Sotomayor did IOTL. Because she is not a judge, there's no way of knowing that she's a moderate and is instead perceived as more partisan.

Kearse (62 o 63) would be an easy confirmation.

TBH, I don't know much about Kearse's ideology. Was she centrist? It says she was considered by Reagan on Wikipedia, but you never know if that's real...

If Stevens retires in 2007, the GOP has a Senate supermajority most likely.

This is nit-picky and not the point of the thread but FWIW, I think the Senate elections in a Kerry wins scenario are kind of a wash. Dems probably still pick-up Rhode Island and maybe even Ohio because of realignment things happening at the time. Dems are in danger in ND and NE... I think GOP retains control for sure, but it's probably not a super majority. Anywho -- I also don't think Stevens will retire. IOTL he has said he felt he was losing a grip on himself the year before he stepped down. I think it's more likely that happens around the same time and he either decides to step down then under a GOP president or, if he feels like his successor being a Republican appointee would upset the balance too much, sticks it out to 2013.

 

[Jackson Lennock]

What is your thinking behind Kagan getting GOP support? She got less than Sotomayor did IOTL. Because she is not a judge, there's no way of knowing that she's a moderate and is instead perceived as more partisan.

I remember actual Conservative voices testified in her favor IIRC, in a way they did not for Sotomayor. The two main reasons Kagan got four fewer votes than Sotomayor were (A) lack of experience but also (B) it was closer to a midterm. Kagan 05 alongside Breyer and Garland probably doesn't draw as much attention or ire.

TBH, I don't know much about Kearse's ideology. Was she centrist? It says she was considered by Reagan on Wikipedia, but you never know if that's real...

She was a moderate Republican who could be conservative in business cases, but on constitutional issues seems basically middle of the road on matters other than abortion. She was more pro-Choice than Souter though, if you're using Rust v. Sullivan as an example.

Anywho -- I also don't think Stevens will retire. IOTL he has said he felt he was losing a grip on himself the year before he stepped down. I think it's more likely that happens around the same time and he either decides to step down then under a GOP president or, if he feels like his successor being a Republican appointee would upset the balance too much, sticks it out to 2013.

I could see him being pretty stubborn, yup.

This is nit-picky and not the point of the thread but FWIW, I think the Senate elections in a Kerry wins scenario are kind of a wash. Dems probably still pick-up Rhode Island and maybe even Ohio because of realignment things happening at the time. Dems are in danger in ND and NE... I think GOP retains control for sure, but it's probably not a super majority.

Chafee went down in large part because the state didn't like George W Bush.

Democrats' house percentage swung up 5.5% from 2004 to 2006. Assuming something not-quite-a-wave, GOP probably holds its Senate seats and could maybe pick up NJ (9 point gap OTL) and MD (10 point gap OTL). But you're right, that's the most they can get. I didn't realize how rough the Senate map was for the GOP in 2006.

 

[Jackson Lennock]

2005: O'Connor Retires. Rehnquist dies shortly afterwards. Kerry nominates Elena Kagan to replace Kagan. She had much Conservative testimony in her favor as a moderate. Kagan was confirmed by a tight 53-47 vote, with critics citing her lack of judicial experience. To replace Chief Justice Rehnquist, President Kerry nominates Associate Justice Stephen Breyer at the recommendation of Senate GOP Conference Whip Mitch McConnell. The Breyer elevation served a useful function for McConnell - Breyer would pivot slightly to the center as Chief Justice as many Chiefs have, and the opening up of the Associate Justice seat meant another confirmation process to slow down any desired legislative or executive-branch confirmation agenda on the part of the Kerry Administration. Breyer's Associate Justice seat would be replaced by DC Circuit Judge Merrick Garland.

2006: David Souter resigns. He is replaced by Jose Cabranes of the Second Circuit, a centrist.

Supreme Court in 2006 -
2 Conservatives: Scalia, Thomas
1 Moderate Conservative: Kennedy
1 Centrist: Cabranes
3 Moderate Liberals: Breyer, Kagan, Garland
2 Liberals: Stevens, Ginsburg

Overall: Center-Left court. Still, the Breyer Court would be denounced as Conservative in some ways. On matters of antitrust and civil litigation, the Court overall continued a general rightward drift. Breyer's Court also was modestly more favorable on religious matters compared to some very liberal precedents, given the moderacy of Chief Justice Breyer and Associate Justice Kagan.

2006 Senate Elections: GOP gains two seats (NJ and and MD) for a 57 seat majority.

2008 Election: John McCain elected President of the United States over John Kerry. The McCain-Lieberman ticket provided an added bonus for McCain - Lieberman would be replaced by Connecticut Governor Jodi Rell. Senate elections that year saw no movement whatsoever on net - staying 57 to 43. The Lieberman replacement elevated it to a 58 seat majority, however. This would increase further to 59 seats in 2010 with the election of former Massachusetts Governor William Weld to the Senate to replace Ted Kennedy in the special election.

2010: Justice John Paul Stevens announces his intended retirement. Stevens would be replaced by Judge Jeffrey Sutton of the Sixth Circuit. Sutton had previously clerked for Justices Scalia and Powell. Though a firm Conservative, Sutton would prove heterodox in some cases.

3 Conservatives: Scalia, Thomas, Sutton
1 Moderate Conservative: Kennedy
1 Centrist: Cabranes
3 Moderate Liberals: Breyer, Kagan, Garland
1 Liberal: Ginsburg


2014: Associate Justice Antonin Scalia retires. He would be replaced by Judge John Roberts of the DC Circuit. Roberts was similarly conservative as Scalia, but considered more pragmatic and incrementalist by many.

3 Conservatives: Thomas, Sutton, Roberts
1 Moderate Conservative: Kennedy
1 Centrist: Cabranes
3 Moderate Liberals: Breyer, Kagan, Garland
1 Liberal: Ginsburg

 

[Jackson Lennock]

Scalia had been on the Supreme Court list to replace Douglas in 1975. He was 11th on the list and not part of the final three, but he was there. What if he had been selected instead of Stevens? It's not that crazy an idea - he was head of an Administrative Agency for two years by that point and had been head of the Office of Legal Counsel for a year. Rehnquist had been head of OLC for three years.

In the short term there probably would not be that big of a difference. Stevens was a moderate at first and only drifted liberal over time. In the mid-70s, Scalia hadn't worked out his philosophy as much yet either. He would be right of Stevens for sure, but not as right as the Scalia of the 1980s onwards.

 

[History Learner]

One alternative to this I've seen is a different sequencing, in that Reagan gets Bork on the court first while the GOP controls the Senate and then does Scalia in 1987. The latter had less of a paper trail than Bork and thus would be much harder to fight; the lack of "Borking" means H.W. Bush is more likely to go to bat for Thomas in 1990 and then select Edith Jones in 1991. Admittedly, Powell dying in 1985 is probably the easier PoD for getting both Bork and Scalia on the Court, however, given that means both would occur in the context of the GOP controlling the Senate.

So an idea I've had is Powell dying on the operating table in 1985, so Bork gets in that year via his seat. 1986 midterms (Cold War flares up) are roughly 1.5% more Republican, enabling them to keep the Senate and Scalia gets in as a result in 1987.

 

[Jackson Lennock]

So an idea I've had is Powell dying on the operating table in 1985, so Bork gets in that year via his seat. 1986 midterms (Cold War flares up) are roughly 1.5% more Republican, enabling them to keep the Senate and Scalia gets in as a result in 1987.

If Powell dies in 85 and is replaced then, Scalia is still appointed in 1986 prior to the midterms.

It's also not clear why Bork would win out over Scalia in 1985. Bork was old, overweight, seen as getting a bit wobbly in the DC Circuit, not great with murder boards, tainted by the Saturday Night Massacre, and didn't have the benefit Scalia had of having a sizable ethnic lobby in his favor. Reagan apparently was quite pleased to put the first Italian American on the bench.

 

[Jackson Lennock]

What if William O Douglas had retired later?

He had a stroke on December 31, 1974 which put him into a wheelchair. Despite severe disability and being unable to do the work, Douglas refused to retire until November 12, 1975. Even then, he kept trying to play Tenth Justice until March 30-31 1976, after which all Nine Justices signed a letter telling to accept that his duties to the Court were done.

One difference would be National League of Cities v. Usery (1976) might come out in 1975. It was argued that year and later reargued after Stevens joined the bench. Douglas would have been the sixth vote, perhaps making it harder to overturn later on.

If Douglas retires in March of 1976, perhaps Stevens doesn't get the nod. Scalia would have another year at OLC and have argued before the Supreme Court at least once. Carla Anderson Hills would have had another year as a Cabinet Officer.

If Douglas is replaced by Carter in 1977, then it probably goes to Shirley Hufstedler. Justice Stevens ended up a liberal justice over time anyways, but early on he was a bit more moderate. Firm quota affirmative action probably gets five votes in UC Regents v Bakke. But the knock-on would be that Reagan may appoint somebody more Conservative than O'Connor later on.

 

[Jackson Lennock]

The Supreme Court in 1969 (Nixon wins in 1960).

1953: Earl Warren (Liberal)
1937: Hugo Black (Liberal)
1939: William O Douglas (Liberal)
1949: Tom Clark (Moderate)
1955: John M Harlan II (Conservative)
1956: William J Brennan (Liberal)
1958: Potter Stewart (Moderate)
1962: Warren Burger (Conservative)
1962: Henry Friendly (Conservative)

[4] Liberals
[2] Moderates
[3] Conservatives

Burger was considered for the Whittaker seat historically under Eisenhower, so he seemed like a probable choice for Whittaker's replacement here. Friendly seemed like a straightforward Republican choice.




Cases which go the other way:

• Gibson v. Florida Legislative Investigation Committee (1963) - A weaker right of First Amendment Associational privacy
• Malloy v. Hogan (1964) - States do not have to abide by the privilege against self-incrimination
• Escobedo v. Illinois (1964) - No right to counsel during police interrogations
• Duncan v. Louisiana (1968) - No right to trial by jury in the states

Cases which come out similarly but not the same:

• Griswold v. Connecticut (1965) - Historically Douglas's opinion commanded 4 votes initially (Douglas, Clark, Brennan, and Goldberg). Warren was intent on joining White's opinion. Goldberg brokered a compromise, convincing Douglas to include the Ninth Amendment and Goldberg would write a concurrence explaining it so Warren could join on Goldberg's grounds. No Goldberg means Griswold [1] doesn't mention the Ninth Amendment and [2] probably is a split opinion. My guess is Warren joins Harlan's opinion. Friendly might join it too, but Burger likely wouldn't.
• Miranda v. Arizona (1966) - Even with the Fifth Amendment not incorporated, there were a line of cases based on the Due Process Clause having to do with coercive means of interrogation. Something like that might pop up as a rationale. Justice Clark pointed to the 1963 Due Process Case Haynes v. Washington as a narrower alternative rationale for Miranda, and so something like that would win out instead. Instead of a hard and fast rule like Miranda, it would be a 'totality of the circumstances' analysis.

The Supreme Court in 1973 (LBJ wins in 1969).

1969: Edmund Muskie (Liberal) [Replacing Warren]
1956: William J Brennan (Liberal)
1958: Potter Stewart (Moderate)
1962: Warren Burger (Conservative)
1962: Henry Friendly (Conservative)
1969: Thurgood Marshall (Liberal) [Replacing Clark]
1970: Abe Fortas (Liberal) [Replacing Douglas]
1971: Frank M Johnson (Moderate) [Replacing Black]
1971: Homer Thornberry (Moderate) [Replacing Harlan]

[4] Liberals
[3] Moderates
[2] Conservatives


I pretty much went with names LBJ considered historically, plus Johnson (Black's desired successor). Muskie was considered for the Thornberry nomination historically. I also think LBJ would try to force Clark off the Court in a similar way as OTL.

 

[Jackson Lennock]

What if Thurgood Marshall had retired in 1992 and not 1991? He played the part of a "visiting Judge" in the Second Circuit in 1992, so it seems like he could still do some casework until then. If he announces his retirement in January 1992, the "Biden Rule" could play out, and his replacement would be delayed until the Clinton Administration.

My guess is the Court still agrees to hear Casey, even if it's only with 8 Justices. Souter voted with the Conservatives in Rust v. Sullivan (1990), and so even without Thomas the Conservatives may expect to have a majority. But if there is a 4-4 split, internal Court shenanigans may play out. The lower Court in Casey treated the "undue burden" standard as having displaced Roe's trimester framework already, so the Court may just rule 6-2 that the Trimester rule is overturned, 5-3 on what it means in this case, and say other things about Roe aren't at issue while reminding people a plurality in 1989 already upheld a 20-week de facto ban. As a big picture thing, Clinton would just put on two more Justices and Roe would be safe soon after though.

President Clinton would replace Marshall. Judge A Leon Higginbotham is often mentioned as Marshall's successor, but I don't see why he'd get picked. He took Senior Status (semi-retirement) in January of 1991 OTL (meaning, before Marshall retired) and retired fully in 1993. He'd be too old and out of health. Plus, he would be too liberal. Clinton OTL said he wanted to strength the Court's centrist core (O'Connor, Kennedy, and Souter) in order to keep those three Justices from voting with the Conservatives. Judge Harry T Edwards of the DC Circuit or Judge Amalya Kearse would do this. Alternatively, there's Judge Jose Cabranes of the Second Circuit. I think Kearse's strongly pro-choice opinion in Rust v. Sullivan (which Souter voted with the Conservatives on) might make her an attractive pick to replace Marshall.

A 1993 vacancy mucks up some things. Byron White announced his retirement in mid-March 1993 but it took until the end of June (three and a half months) for Clinton to settle on Ginsburg. Clinton would also be distracted by other transition things (including the variety of confirmation headaches he had for cabinet posts OTL). This makes me think he'd be inclined to go for the pro-Business Kearse just to get it out of the way. White may retire in 1994 and Blackmun in 1995. Breyer (the runner up for the Ginsburg seat) lost his chance in part because was recovering from an injury and sick, giving Clinton an impression that Breyer was 'heartless.' Even a few months delay might mean Breyer gets the nod and Ginsburg doesn't. The OTL Breyer seat might just go to Ginsburg, but it could also go to Cabranes.

Souter would be swing vote. What this means, I'm not entirely sure. Souter and Breyer were part of many 7-2 majorities historically (Stevens and Ginsburg dissenting) and Souter likely drifted left over time as a partial result of the backlash from Casey. A more low-key Casey could mean he'd be more middling; like an O'Connor 2.0. I also think Bush v. Gore pushed him left, and there presumably wouldn't be a Bush v. Gore here.

 

[Bolt451]

If Bernie won in 2016. Who do you think he'd be able to get into the supreme court?

 

[Excelsior]

If Bernie won in 2016. Who do you think he'd be able to get into the supreme court?

Sadly most likely no one. The outgoing Senate would rush Garland in the lame duck period, Kennedy wouldn't retire, and the Senate (assuming Republican majority after the 2018 midterms) would block him from filling the RBG vacancy.

 

[theflyingmgoose]

Supreme Court as of January 20, 1993:
CJ: William Rehnquist (Reagan, 1986)
AJ: Byron White (Kennedy, 1962)
AJ: Harry Blackmun (Nixon, 1970)
AJ: John Paul Stevens (Ford, 1975)
AJ: Sandra Day O'Connor (Reagan, 1981)
AJ: Antonin Scalia (Reagan, 1986)
AJ: Anthony Kennedy (Reagan, 1988)
AJ: Ruth Bader Ginsburg (Dukakis, 1989)
AJ: Stephen Carter (Dukakis, 1990)

Supreme Court as of January 20, 1997:
CJ: William Rehnquist (Reagan, 1986)
AJ: Byron White (Kennedy, 1962)
AJ: John Paul Stevens (Ford, 1975)
AJ: Sandra Day O'Connor (Reagan, 1981)
AJ: Antonin Scalia (Reagan, 1986)
AJ: Anthony Kennedy (Reagan, 1988)
AJ: Ruth Bader Ginsburg (Dukakis, 1989)
AJ: Stephen Carter (Dukakis, 1990)
AJ: Stephen Breyer (Dukakis, 1994)

Supreme Court as of January 20, 2001:
CJ: William Rehnquist (Reagan, 1986)
AJ: Sandra Day O'Connor (Reagan, 1981)
AJ: Antonin Scalia (Reagan, 1986)
AJ: Anthony Kennedy (Reagan, 1988)
AJ: Ruth Bader Ginsburg (Dukakis, 1989)
AJ: Stephen Carter (Dukakis, 1990)
AJ: Stephen Breyer (Dukakis, 1994)
AJ: Jose Cabranes (Gore, 1997)
AJ: Merrick Garland (Gore, 2000)

Supreme Court as of January 20, 2005:
CJ: William Rehnquist (Reagan, 1986)
AJ: Sandra Day O'Connor (Reagan, 1981)
AJ: Antonin Scalia (Reagan, 1986)
AJ: Anthony Kennedy (Reagan, 1988)
AJ: Ruth Bader Ginsburg (Dukakis, 1989)
AJ: Stephen Carter (Dukakis, 1990)
AJ: Stephen Breyer (Dukakis, 1994)
AJ: Jose Cabranes (Gore, 1997)
AJ: Merrick Garland (Gore, 2000)

Supreme Court as of January 20, 2009:
AJ: Sonia Sotomayor (Clinton, 2006)
AJ: Sandra Day O'Connor (Reagan, 1981)
AJ: Antonin Scalia (Reagan, 1986)
AJ: Anthony Kennedy (Reagan, 1988)
AJ: Ruth Bader Ginsburg (Dukakis, 1989)
AJ: Stephen Carter (Dukakis, 1990)
AJ: Stephen Breyer (Dukakis, 1994)
AJ: Jose Cabranes (Gore, 1997)
AJ: Merrick Garland (Gore, 2000)

Supreme Court as of January 20, 2013:
AJ: Sonia Sotomayor (Clinton, 2006)
AJ: Antonin Scalia (Reagan, 1986)
AJ: Anthony Kennedy (Reagan, 1988)
AJ: Ruth Bader Ginsburg (Dukakis, 1989)
AJ: Stephen Carter (Dukakis, 1990)
AJ: Stephen Breyer (Dukakis, 1994)
AJ: Jose Cabranes (Gore, 1997)
AJ: Merrick Garland (Gore, 2000)
AJ: John Roberts (McCain, 2009)

Supreme Court as of January 20, 2017:
AJ: Sonia Sotomayor (Clinton, 2006)
AJ: Antonin Scalia (Reagan, 1986)
AJ: Anthony Kennedy (Reagan, 1988)
AJ: Ruth Bader Ginsburg (Dukakis, 1989)
AJ: Stephen Carter (Dukakis, 1990)
AJ: Stephen Breyer (Dukakis, 1994)
AJ: Jose Cabranes (Gore, 1997)
AJ: Merrick Garland (Gore, 2000)
AJ: John Roberts (McCain, 2009)

Supreme Court as of January 20, 2021:
AJ: Sonia Sotomayor (Clinton, 2006)
AJ: Anthony Kennedy (Reagan, 1988)
AJ: Stephen Carter (Dukakis, 1990)
AJ: Stephen Breyer (Dukakis, 1994)
AJ: Jose Cabranes (Gore, 1997)
AJ: Merrick Garland (Gore, 2000)
AJ: John Roberts (McCain, 2009)
AJ: Lucy Koh (Obama, 2018)
AJ: Ketanji Brown-Jackson (Obama, 2019)

Supreme Court as of May 20, 2023:
AJ: Sonia Sotomayor (Clinton, 2006)
AJ: Stephen Breyer (Dukakis, 1994)
AJ: Jose Cabranes (Gore, 1997)
AJ: Merrick Garland (Gore, 2000)
AJ: John Roberts (McCain, 2009)
AJ: Lucy Koh (Obama, 2018)
AJ: Ketanji Brown-Jackson (Obama, 2019)
AJ: Paul Watford (Obama, 2021)
AJ: Jacqueline Nguyen (Obama, 2022)

 

[Jackson Lennock]

What if Thurgood Marshall had retired in 1992 and not 1991? He played the part of a "visiting Judge" in the Second Circuit in 1992, so it seems like he could still do some casework until then. If he announces his retirement in January 1992, the "Biden Rule" could play out, and his replacement would be delayed until the Clinton Administration.

According to this guy who worked for Orrin Hatch on Judiciary, Clinton had four names to replace Blackmun: Bruce Babbitt, Richard S Arnold, Jose Cabranes, and Amalya Kearse before Breyer was was nudged into the list.

Supreme Court on January 20, 1997 [Marshall Delays Retirement]
CJ: William H Rehnquist
AJ: John Paul Stevens
AJ: Sandra Day O'Connor
AJ: Antonin Scalia
AJ: Anthony Kennedy
AJ: David Souter
AJ: Amalya Kearse
AJ: Stephen Breyer
AJ: Jose Cabranes

Conservative: 2
Moderate Conservative: 2
Moderate Liberal: 4
Liberal: 1

 

[Jackson Lennock]

After Jones & Laughlin Steel case (one of the "Switch in Time" cases) in April 1937 Joseph Robinson, the Senate majority leader, told a Roosevelt representative that "if the President wants to compromise I can get him a couple of extra justices tomorrow. What he ought to do is say he's won, which he has, agree to compromise to make the thing sure, and wind the whole business up."

What if FDR had gone with that?

The first two nominees in all likelihood would have been Senate Majority Leader Joseph Robinson and OTL's Hugo Black. Robinson had wanted a seat on the Court and FDR had promised him the first opening. Robinson died in July 1937 OTL, but that seems in large part have been due to him fighting so hard for the Court Packing plan. He had been known as the "fightingest" man in the Senate, and Court life probably would be a lot less stressful.

The Administration apparently wanted 6 seats because they didn't trust Robinson to be a reliable liberal on the bench and didn't trust Hughes and Roberts to remain liberal on economic issues. Hughes and Roberts OTL after 1937 indeed The three musketeers plus 5 liberals could outvote any moderate-to-conservative bloc including Robinson, Hughes, and Roberts 8 to 7.

So before Van Devanter retires, the Court looks like this:

CJ: Hughes (Center)
AJ: McReynolds (Conservative)
AJ: Brandeis (Moderate Liberal)
AJ: Sutherland (Conservative)
AJ: Van Devanter (Conservative)
AJ: Stone (Liberal)
AJ: Butler (Conservative)
AJ: Roberts (Moderate Conservative)
AJ: Cardozo (Moderate Liberal)
AJ: Robinson (Center)
AJ: Black (Liberal)

Conservative: 4
Moderate Conservative: 1
Center: 2
Moderate Liberal: 2
Liberal: 2

I put Brandeis and Cardozo in the moderate liberal category because they were more moderate on civil liberties than Stone was. The Justices later considered to be on the "Conservative" wing of the Court in the late 40s and 50s are ones I mark off as moderate liberals later.

If things go as OTL, Stanley Reed would replace Van Devanter (1937), Frankfurter replaces Sutherland (1938), Douglas replaces Cardozo (1939), Murphy replaces Brandeis (1939), and Jackson or Byrnes would replace Butler (1939). Although it is also possible neither of those two replace Butler. Rutledge was considered in 1939 to replace Cardozo, and Lloyd K Garrison was considered to replace Van Devanter in 1937.


CJ: Hughes (Center)
AJ: McReynolds (Conservative)
AJ: Harlan Fiske Stone (Liberal)
AJ: Roberts (Moderate Conservative)
AJ: Robinson (Center)
AJ: Hugo Black (Liberal)
AJ: Stanley Reed (Moderate Liberal)
AJ: Felix Frankfurter (Moderate Liberal)
AJ: William O Douglas (Liberal)
AJ: Frank Murphy (Liberal)
AJ: Lloyd Garrison / Wiley Rutledge (Liberal)

Conservative: 1
Moderate Conservative: 1
Center: 2
Moderate Liberal: 2
Liberal: 4

 

[Jackson Lennock]

After Jones & Laughlin Steel case (one of the "Switch in Time" cases) in April 1937 Joseph Robinson, the Senate majority leader, told a Roosevelt representative that "if the President wants to compromise I can get him a couple of extra justices tomorrow. What he ought to do is say he's won, which he has, agree to compromise to make the thing sure, and wind the whole business up."

What if FDR had gone with that?

The first two nominees in all likelihood would have been Senate Majority Leader Joseph Robinson and OTL's Hugo Black. Robinson had wanted a seat on the Court and FDR had promised him the first opening. Robinson died in July 1937 OTL, but that seems in large part have been due to him fighting so hard for the Court Packing plan. He had been known as the "fightingest" man in the Senate, and Court life probably would be a lot less stressful.

The Administration apparently wanted 6 seats because they didn't trust Robinson to be a reliable liberal on the bench and didn't trust Hughes and Roberts to remain liberal on economic issues. Hughes and Roberts OTL after 1937 indeed The three musketeers plus 5 liberals could outvote any moderate-to-conservative bloc including Robinson, Hughes, and Roberts 8 to 7.

So before Van Devanter retires, the Court looks like this:

CJ: Hughes (Center)
AJ: McReynolds (Conservative)
AJ: Brandeis (Moderate Liberal)
AJ: Sutherland (Conservative)
AJ: Van Devanter (Conservative)
AJ: Stone (Liberal)
AJ: Butler (Conservative)
AJ: Roberts (Moderate Conservative)
AJ: Cardozo (Moderate Liberal)
AJ: Robinson (Center)
AJ: Black (Liberal)

Conservative: 4
Moderate Conservative: 1
Center: 2
Moderate Liberal: 2
Liberal: 2

I put Brandeis and Cardozo in the moderate liberal category because they were more moderate on civil liberties than Stone was. The Justices later considered to be on the "Conservative" wing of the Court in the late 40s and 50s are ones I mark off as moderate liberals later.

If things go as OTL, Stanley Reed would replace Van Devanter (1937), Frankfurter replaces Sutherland (1938), Douglas replaces Cardozo (1939), Murphy replaces Brandeis (1939), and Jackson or Byrnes would replace Butler (1939). Although it is also possible neither of those two replace Butler. Rutledge was considered in 1939 to replace Cardozo, and Lloyd K Garrison was considered to replace Van Devanter in 1937.


CJ: Hughes (Center)
AJ: McReynolds (Conservative)
AJ: Harlan Fiske Stone (Liberal)
AJ: Roberts (Moderate Conservative)
AJ: Robinson (Center)
AJ: Hugo Black (Liberal)
AJ: Stanley Reed (Moderate Liberal)
AJ: Felix Frankfurter (Moderate Liberal)
AJ: William O Douglas (Liberal)
AJ: Frank Murphy (Liberal)
AJ: Lloyd Garrison / Wiley Rutledge (Liberal)

Conservative: 1
Moderate Conservative: 1
Center: 2
Moderate Liberal: 2
Liberal: 4

Hughes dies and is replaced by Stone, who is replaced by Jackson. McReynolds dies and is replaced by Byrnes, who is replaced by Rutledge or Garrison. I'm going to assume Robinson dies or retires before 1945. Sherman Minton was considered in 1937 and got it in 1949, so he seems likely. It's now an overwhelmingly liberal court.

Supreme Court in 1945

CJ: Harlan Fiske Stone (Liberal)
AJ: Roberts (Moderate Conservative)
AJ: Hugo Black (Liberal)
AJ: Stanley Reed (Moderate Liberal)
AJ: Felix Frankfurter (Moderate Liberal)
AJ: William O Douglas (Liberal)
AJ: Frank Murphy (Liberal)
AJ: Lloyd Garrison / Wiley Rutledge (Liberal)
AJ: Robert Jackson (Moderate Liberal)
AJ: Wiley Rutledge / Wiley Rutledge (Liberal)
AJ: Sherman Minton (Moderate Liberal)

Moderate Conservative: 1
Moderate Liberal: 4
Liberal: 6

Supreme Court in 1949

CJ: Fred Vinson (Moderate Liberal)
AJ: Hugo Black (Liberal)
AJ: Stanley Reed (Moderate Liberal)
AJ: Felix Frankfurter (Moderate Liberal)
AJ: William O Douglas (Liberal)
AJ: Frank Murphy (Liberal)
AJ: Lloyd Garrison / Wiley Rutledge (Liberal)
AJ: Robert Jackson (Moderate Liberal)
AJ: Wiley Rutledge / Wiley Rutledge (Liberal)
AJ: Sherman Minton (Moderate Liberal)
AJ: Harold Burton (Center)

Center: 1
Moderate Liberal: 5
Liberal: 5

Supreme Court in 1953

CJ: Fred Vinson (Moderate Liberal)
AJ: Hugo Black (Liberal)
AJ: Stanley Reed (Moderate Liberal)
AJ: Felix Frankfurter (Moderate Liberal)
AJ: William O Douglas (Liberal)
AJ: Lloyd Garrison / Wiley Rutledge (Liberal)
AJ: Robert Jackson (Moderate Liberal)
AJ: Sherman Minton (Moderate Liberal)
AJ: Harold Burton (Center)
AJ: Tom C Clark (Moderate Liberal)
AJ: Herbert F Goodrich (Moderate Liberal)

Center: 1
Moderate Liberal: 7
Liberal: 3

I mainly went with OTL names, plus Judge Goodrich of the Third Circuit who was considered several times. Truman had a tendency to put on what were considered Conservative judges for his time (meaning moderate liberals by New Deal Court standards).


Supreme Court in 1957

CJ: Earl Warren (Liberal)
AJ: Hugo Black (Liberal)
AJ: Stanley Reed (Moderate Liberal)
AJ: Felix Frankfurter (Moderate Liberal)
AJ: William O Douglas (Liberal)
AJ: Lloyd Garrison / Wiley Rutledge (Liberal)
AJ: Harold Burton (Center)
AJ: Tom C Clark (Moderate Liberal)
AJ: Herbert F Goodrich (Moderate Liberal)
AJ: John M Harlan II (Center)
AJ: William J Brennan (Liberal)

Center: 2
Moderate Liberal: 4
Liberal: 5

 

[Jackson Lennock]

If Ross Perot had won in 1992, what sort of Justices would he have put on?

Perot would probably want Justices who were (1) Business-friendly, (2) Law-and-Order, and (3) Pro-Choice. But what would that mean?

In the "A Giant Sucking Sound" timeline, Perot puts up Orrin Hatch and his Chief of Staff Thomas W. Luce III. I have no idea where the author got those names from.

 

[Elektronaut]

What if Thurgood Marshall had retired in 1992 and not 1991? He played the part of a "visiting Judge" in the Second Circuit in 1992, so it seems like he could still do some casework until then. If he announces his retirement in January 1992, the "Biden Rule" could play out, and his replacement would be delayed until the Clinton Administration.

My guess is the Court still agrees to hear Casey, even if it's only with 8 Justices. Souter voted with the Conservatives in Rust v. Sullivan (1990), and so even without Thomas the Conservatives may expect to have a majority. But if there is a 4-4 split, internal Court shenanigans may play out. The lower Court in Casey treated the "undue burden" standard as having displaced Roe's trimester framework already, so the Court may just rule 6-2 that the Trimester rule is overturned, 5-3 on what it means in this case, and say other things about Roe aren't at issue while reminding people a plurality in 1989 already upheld a 20-week de facto ban. As a big picture thing, Clinton would just put on two more Justices and Roe would be safe soon after though.

President Clinton would replace Marshall. Judge A Leon Higginbotham is often mentioned as Marshall's successor, but I don't see why he'd get picked. He took Senior Status (semi-retirement) in January of 1991 OTL (meaning, before Marshall retired) and retired fully in 1993. He'd be too old and out of health. Plus, he would be too liberal. Clinton OTL said he wanted to strength the Court's centrist core (O'Connor, Kennedy, and Souter) in order to keep those three Justices from voting with the Conservatives. Judge Harry T Edwards of the DC Circuit or Judge Amalya Kearse would do this. Alternatively, there's Judge Jose Cabranes of the Second Circuit. I think Kearse's strongly pro-choice opinion in Rust v. Sullivan (which Souter voted with the Conservatives on) might make her an attractive pick to replace Marshall.

A 1993 vacancy mucks up some things. Byron White announced his retirement in mid-March 1993 but it took until the end of June (three and a half months) for Clinton to settle on Ginsburg. Clinton would also be distracted by other transition things (including the variety of confirmation headaches he had for cabinet posts OTL). This makes me think he'd be inclined to go for the pro-Business Kearse just to get it out of the way. White may retire in 1994 and Blackmun in 1995. Breyer (the runner up for the Ginsburg seat) lost his chance in part because was recovering from an injury and sick, giving Clinton an impression that Breyer was 'heartless.' Even a few months delay might mean Breyer gets the nod and Ginsburg doesn't. The OTL Breyer seat might just go to Ginsburg, but it could also go to Cabranes.

Souter would be swing vote. What this means, I'm not entirely sure. Souter and Breyer were part of many 7-2 majorities historically (Stevens and Ginsburg dissenting) and Souter likely drifted left over time as a partial result of the backlash from Casey. A more low-key Casey could mean he'd be more middling; like an O'Connor 2.0. I also think Bush v. Gore pushed him left, and there presumably wouldn't be a Bush v. Gore here.

No justice is going to choose to retire in an election year and Marshall probably partly retired when he did in part to precisely avoid that. In a world where, say, he cuts back on his chain smoking it is possible he feels he could make it to early 1993. He might in that event die sometime in 1992, in which case yes it absolutely would not be filled in an election year.

The Clinton White House would be constrained by more stabalisers on this than the OTL appointments given Marshall is obviously going to be replaced by another black justice (Which, given how white the judicary and government was back then means the field is pretty narrow) but they would almost certainly still make a mess of it just like they did of just about everything else in the first two years OTL. Higginbotham's last chance was for a Democrat to be elected in 1988, up to that point he would have been easily the favourite to replace Marshall, after him it gets more unpredictable and when you factor in the aforementioned sclerosis of the first two years even moreso.

Clinton had absolutely no idea what he wanted in a justice, he nearly nominated Mario Cuomo and George Mitchell. Ginsburg was a very late pick from left field and Breyer was nominated because there'd been so many fuck-ups by that point and he was an easy confirmation as somebody with a lot of friends on the Hill. I will say though that Harry Edwards doesn't strike me as a very Clinton pick.

 

[Jackson Lennock]

No justice is going to choose to retire in an election year and Marshall probably partly retired when he did in part to precisely avoid that. In a world where, say, he cuts back on his chain smoking it is possible he feels he could make it to early 1993. He might in that event die sometime in 1992, in which case yes it absolutely would not be filled in an election year.

The Clinton White House would be constrained by more stabalisers on this than the OTL appointments given Marshall is obviously going to be replaced by another black justice (Which, given how white the judicary and government was back then means the field is pretty narrow) but they would almost certainly still make a mess of it just like they did of just about everything else in the first two years OTL. Higginbotham's last chance was for a Democrat to be elected in 1988, up to that point he would have been easily the favourite to replace Marshall, after him it gets more unpredictable and when you factor in the aforementioned sclerosis of the first two years even moreso.

Clinton had absolutely no idea what he wanted in a justice, he nearly nominated Mario Cuomo and George Mitchell. Ginsburg was a very late pick from left field and Breyer was nominated because there'd been so many fuck-ups by that point and he was an easy confirmation as somebody with a lot of friends on the Hill. I will say though that Harry Edwards doesn't strike me as a very Clinton pick.

After Casey, Kearse would also be a strong pro-choice pick given her dissent in Rust v. Sullivan.

Casey would be a far less dramatic case too, I think. The reasoning and tone may be much more like O'Connor's in Webster - measured, focused on precedent and the incremental shift in the law, and there being no need to resolve anything else in the given case. The lower court in Casey already was of the opinion that O'Connor's unduly burdensome standard had displaced the trimester regime, so Casey was ultimately about how it should be applied in the fact pattern at hand.

 

[Elektronaut]

It doesn't necessarily have to be Kearse, it could be someone fairly obscure. Drew Days, as someone with Washington experience, is probably more likely a choice than Kearse, who in any case was distrusted by both sides of the aisle and never seriously considered IOTL precisely because she was percieved as such a centrist choice.

IOTL Days' prospects for any SCOTUS consideration were ended by his tenure as solicitor general but that obviously wouldn't be a consideration with a vacancy right out of the gate.