Supreme Court Cases as PoDs

John Fredrick Parker · Nov 27, 2012

What are some historic Supreme Court Cases that were close to going the other way? How could said reversal have happened -- say it was 5-4 OTL, which Justice would be the best candidate for reversal -- and what would have been the effects of said reversal? Two ideas that come to mind:

Trop v Dulles (1958) -- OTL, it established that it was unconstitutional for the government to revoke the citizenship of a U.S. citizen as a punishment, in this case for wartime desertion; Whittaker voted with the 5 member majority, and he was known as an extremely vacillating judge. If he had ruled in favor of the government, future draft conflicts (like the one during Vietnam) might have gone very differently.

Bowers v Hardwick (1986) -- Justice Powell was actually planning on voting in the plaintiff's favor; supposedly a major reason for reversing on this was that he couldn't think of any gay people he knew, even though one of his clerks was a (closeted) homosexual. If Powell votes with Blackmun's four (even if it's just in judgement), this would essentially be Lawrence v Texas, 17 years earlier.

What do you think of these examples? And what potential cases can you think of?

Captain Jack · Nov 27, 2012

Well off the top of my head there is Dred Scott v. Sandford which effectively said that slaves and their descendants (regardless of whether the descendants were slaves or not) were not U.S. citizens and therefore not protected by the Constitution. Although that one was 7-2 every single justice wrote their own opinion of the case so there could be room for a different outcome.

Another is Marbury v. Madison which gave the court the power of judicial review in practice as well as in theory. This case was an unanimous 4-0 decision so it could be hard to change the result although if you did it would have pretty signifiant repercussions down the line.

CT23 · Nov 27, 2012

Casey vs. Planned Parenthood was 5-4 IIRC. How would society be different if Kennedy had switched his vote?

Emperor Norton I · Nov 27, 2012

District of Columbia v Heller
Had it gone differently, would have had a wide effect on the interpretation of gun rights in America. It supplanted Miller (I don't know if it officially overturned it or simply said Miller referred only to some specific instance) and the legal view that the second amendment offered unlimited protection only to militia members and that it was specified only for militias with the new legal view that the second amendment applied as a universal right to bear arms for all individuals for whatever purposes they see fit. It also overturned, as a result, city bans on gun ownership (I'd like to note, there have historically in the United States always been bans on bringing guns into certain towns, cities, counties and other jurisdictions as outlined by the governments of those areas, which is a fact the majority opinion ignored blatantly in my opinion).
Had it gone otherwise, say if Kerry had managed to win in '04 and appoint people to the court, then it would have upheld the Miller view and reaffirmed it. What effect this would have on the popular consciousness I'm not sure. The individual right view was the majority view of the citizenry up to and I do believe since Heller, which ignored the precedent set by Miller and previous legal cases. So perhaps that popular notion still continues in spite of the legal realities as it had before. The difference with Heller, however, is that is was something which people really focused on, so if their attention spans hold, then it could lead to people being very, very upset who have the opposing view to that alternate version of the case and the finding landing very, very hard. You also had Montana threatening to secede from the Union if Heller did not find for an individual right. Not that I think it'd happen, but its an interesting footnote and it signifies perhaps a potential Tea Party type backlash over all that.

John Fredrick Parker · Nov 27, 2012

CT23 said:
Casey vs. Planned Parenthood was 5-4 IIRC. How would society be different if Kennedy had switched his vote?

While this is a great case for a PoD, I don't know if Kennedy voting against abortion rights is really your best PoD (considering his libertarian tendencies).

Emperor Norton I said:
District of Columbia v Heller
...
Had it gone otherwise, say if Kerry had managed to win in '04 and appoint people to the court...

Another excellent idea -- conversely, you could have John Roberts get into the same mindset he must have been in four years later with Sebelius, decide that the state decisis in the case of US v Miller is clear, and vote in DC's favor.

Plumber · Nov 27, 2012

McCleskey v. Kemp is the backbone of the War on Drugs. It legalizes racial profiling as long as the police officer refuses that they're doing it. It was 5-4 of course, and to change it (1987), get rid of Reagan.

John Fredrick Parker · Nov 27, 2012

Somewhat relatedly, I've also found myself wondering about Constitutional Amendments that might have been, though aside from one forbiding any citizen from accepting Titles of Nobility or foreign patronage, none of the failed proposals really came any close...

Plumber said:
McCleskey v. Kemp is the backbone of the War on Drugs. It legalizes racial profiling as long as the police officer refuses that they're doing it. It was 5-4 of course, and to change it (1987), get rid of Reagan.

Or you could have Powell side with Stevens, or even just do more to limit the rulings' impact -- after all, he said later in life that he regretted his opinion.

Lemon flavoured · Nov 27, 2012

Bush v. Gore?

TNF · Nov 27, 2012

Citizens United going the other way might have changed some recent election results. I mean, you probably wouldn't see Russ Feingold out of a job.

imperialaquila · Nov 27, 2012

Dredd Scott is the obvious one. The most likely alternate outcome is the court simply ruling that Dredd Scott is a slave instead of going for a broader decision as IOTL. Avoid the effective legalization of slavery in the territories that you got OTL, and you might see some of the abolitionist outrage moderated somewhat in time for the 1860 election. Maybe Douglas gets a few more votes?

bguy · Nov 27, 2012

Milliken v. Bradley (1974). A 5-4 decision that effectively prevented desegregation busing across school district lines. If the decision had gone the other way it would have had major effects.

OTL saw multiple attempts in Congress to strip the federal courts of jurisdiction over busing cases (several of which came very close to passing). If Milliken is decided the other way, and thousands of suburban children start getting bused into inner city schools, there is going to be enormous pressure for Congress to take action, so it is very likely such legislation gets enacted. (Which would set a powerful precedent for Congress removing federal court jurisdiction.)

Whereas if Congress ultimately fails to reverse or neuter Milliken then you probably see large numbers of suburban families take their children out of the public school system (so as to get them out of the reach of busing orders.) This could in turn lead to increased support for school vouchers or tax credits for private school tuition as those are now the best ways for middle class families to still get government funding for education without being subject to busing orders.

Milliken going the other way also all but guarantees that busing will be the dominant issue in the '74 midterm elections (possibly preventing the Republican wipeout that year) and in the '76 presidential election as well if anti-busing legislation fails in Congress. Ford was anti-busing in OTL but having a hot botton social issue become the dominant issue in the election might still be enough to throw the Republican nomination to the more conservative Reagan. IIRC Carter was pro-busing (or at least believed that it would take a constitutional amendment to prohibit it), so if the issue becomes toxic enough it could easily cost him the Democrat nomination since he'll probably be getting hammered from both the left and right. The Republican candidate probably wins in '76 unless the Democrats run an explicitly anti-busing candidate (Joe Biden maybe?)

Plumber · Nov 27, 2012

John Fredrick Parker said:
Somewhat relatedly, I've also found myself wondering about Constitutional Amendments that might have been, though aside from one forbiding any citizen from accepting Titles of Nobility or foreign patronage, none of the failed proposals really came any close...

The Equal Rights Amendment failed by three states. Five states, Virginia, Utah, Illinois, Florida and Louisiana had statewide ERAs but didn't ratify the federal one. Virginia and Utah seemed deadset on it for political reasons, while Florida and Louisiana had one house go for it. In 1980, ratification failed in Illinois by five votes (they are unique in that they need three-fifths of the legislature to approve, not just a simple majority). If Hinckley assassinated Reagan, and Illinois got five more votes in 1980, the press could very well cover the Equal Rights Amendment again, especially since President Bush supported it. Florida and Louisiana could then ratify it. Nevada also had both houses ratify it in separate sessions, so maybe it could try again. Of course, the Supreme Court would have to rule that states can't rescind ratifications, or five (well, four, for some reason people at the time thought Nebraska properly rescinded ratification when it didn't), or you would have to get a few more states to pass it.

And it's easy as hell to butterfly away the 27th Amendment.

John Fredrick Parker said:
Somewhat relatedly, I've also found myself wondering about Constitutional Amendments that might have been, though aside from one forbiding any citizen from accepting Titles of Nobility or foreign patronage, none of the failed proposals really came any close...
Or you could have Powell side with Stevens, or even just do more to limit the rulings' impact -- after all, he said later in life that he regretted his opinion.

That too. This will change million of young American lives.

bguy said:
Milliken v. Bradley (1974). A 5-4 decision that effectively prevented desegregation busing across school district lines. If the decision had gone the other way it would have had major effects.

OTL saw multiple attempts in Congress to strip the federal courts of jurisdiction over busing cases (several of which came very close to passing). If Milliken is decided the other way, and thousands of suburban children start getting bused into inner city schools, there is going to be enormous pressure for Congress to take action, so it is very likely such legislation gets enacted. (Which would set a powerful precedent for Congress removing federal court jurisdiction.)

Whereas if Congress ultimately fails to reverse or neuter Milliken then you probably see large numbers of suburban families take their children out of the public school system (so as to get them out of the reach of busing orders.) This could in turn lead to increased support for school vouchers or tax credits for private school tuition as those are now the best ways for middle class families to still get government funding for education without being subject to busing orders.

Milliken going the other way also all but guarantees that busing will be the dominant issue in the '74 midterm elections (possibly preventing the Republican wipeout that year) and in the '76 presidential election as well if anti-busing legislation fails in Congress. Ford was anti-busing in OTL but having a hot botton social issue become the dominant issue in the election might still be enough to throw the Republican nomination to the more conservative Reagan. IIRC Carter was pro-busing (or at least believed that it would take a constitutional amendment to prohibit it), so if the issue becomes toxic enough it could easily cost him the Democrat nomination since he'll probably be getting hammered from both the left and right. The Republican candidate probably wins in '76 unless the Democrats run an explicitly anti-busing candidate (Joe Biden maybe?)

Good one. This would be interesting in a Humphrey Presidency. George Wallace's assassination attempt will surely be butterflied away in such a scenario...

CT23 · Nov 27, 2012

John Fredrick Parker said:
While this is a great case for a PoD, I don't know if Kennedy voting against abortion rights is really your best PoD (considering his libertarian tendencies).
.

So what would be the best POD to get a 5-4 vote the other way in Casey?

And how would society look if the case went the other way?

Plumber · Nov 27, 2012

CT23 said:
So what would be the best POD to get a 5-4 vote the other way in Casey?

And how would society look if the case went the other way?

Anthony Kennedy was the third choice of Reagan.

If abortion suddenly becomes illegal, then the Democrats all of a sudden have a hell of a lot of political ammunition, and the Religious Right becomes complacent. Good for Democratic grassroots and Democratic politicians. The effect on society though

John Fredrick Parker · Nov 27, 2012

TNF said:
Citizens United going the other way might have changed some recent election results.

Ah, but which of the five man majority goes the other way? Roberts, maybe?

imperialaquila said:
Dredd Scott is the obvious one. The most likely alternate outcome is the court simply ruling that Dredd Scott is a slave instead of going for a broader decision as IOTL. Avoid the effective legalization of slavery in the territories that you got OTL, and you might see some of the abolitionist outrage moderated somewhat in time for the 1860 election. Maybe Douglas gets a few more votes?

That's a very good example of a major non-5-4 decision that still had the potential at the time to be quite different.

bguy said:
Milliken v. Bradley (1974).

Oh man, this would be huge; I'm trying to think of the best PoD to switch one vote, and the best I've got is Powell not accepting his second Supreme Court nomination.

Lemon flavoured said:
Bush v. Gore?

Another easy one.

Rich Rostrom · Nov 27, 2012

Plumber said:
Anthony Kennedy was the third choice of Reagan.

If abortion suddenly becomes illegal, then...

...every state legislature in the U.S. has a strong anti-abortion majority.

It may come as a shock to you, but the Supreme Court of the United States does not enact laws.

... the Democrats all of a sudden have a hell of a lot of political ammunition....

More likely, the pro-life Democrats control that party. How else could abortion prohibition pass "suddenly" in every state?

Bear in mind that the Casey in Casey v. Planned Parenthood was Democrat Governor Robert Casey of Pennsylvania.

Besides which, the Pennsylvania Abortion Control Act of 1982 was not a complete or even extensive prohibition on abortion, which would directly challenge Roe v. Wade. It did not bar any abortions at all, in fact: it only established requirements of notification, "informed consent", and a 24-hour waiting period.

In upholding it, the Court could have overturned Roe v. Wade, it was thought, but not necessarily. And any actual restrictions on abortion would require legislative actions.

fscott · Nov 27, 2012

Rich Rostrom said:
...every state legislature in the U.S. has a strong anti-abortion majority.

It may come as a shock to you, but the Supreme Court of the United States does not enact laws.

More likely, the pro-life Democrats control that party. How else could abortion prohibition pass "suddenly" in every state?

Bear in mind that the Casey in Casey v. Planned Parenthood was Democrat Governor Robert Casey of Pennsylvania.

Besides which, the Pennsylvania Abortion Control Act of 1982 was not a complete or even extensive prohibition on abortion, which would directly challenge Roe v. Wade. It did not bar any abortions at all, in fact: it only established requirements of notification, "informed consent", and a 24-hour waiting period.

In upholding it, the Court could have overturned Roe v. Wade, it was thought, but not necessarily. And any actual restrictions on abortion would require legislative actions.

I lived in PA will he was Governor. He was a crappy Governor and held himself above the normal citizen, IMO. He went on a transplant waiting list and with hours he got a Heart and Liver transplant. Normal waiting time is at least a year. He also made some very bad pardons. If I told you my true feelings about his actions I would be kicked. I hope it is very hot where he is.

Francisco Cojuanco · Nov 27, 2012

John Fredrick Parker said:
While this is a great case for a PoD, I don't know if Kennedy voting against abortion rights is really your best PoD (considering his libertarian tendencies).

Another excellent idea -- conversely, you could have John Roberts get into the same mindset he must have been in four years later with Sebelius, decide that the state decisis in the case of US v Miller is clear, and vote in DC's favor.

Kennedy originally favored siding with Rehnquist, Scalia and others of their ilk. It was a close run thing.

John Fredrick Parker · Nov 27, 2012

Francisco Cojuanco said:
Kennedy originally favored siding with Rehnquist, Scalia and others of their ilk. It was a close run thing.

Ah, did not know that.

Plumber said:
If abortion suddenly becomes illegal...

Rich Rostrom said:
...every state legislature in the U.S. has a strong anti-abortion majority.

It may come as a shock to you, but the Supreme Court of the United States does not enact laws.

I think he means" if state legislatures can suddenly outlaw abortion", since several states will clearly opt not to, as they did not prior to Roe.

Francisco Cojuanco · Nov 27, 2012

In such a case New York becomes the nation's abortion capital in the same way that Nevada is with quickie marriages and prostitution. Other states had legal abortion, but they tended to have requirements that they be in state residents. New York did not. One could make a case that the services provided might violate the Mann Act, but I doubt that there would be enforcement against going to New York to procure an abortion.