AHC — Center holds with U.S. Supreme Court from 1980 to 2015?

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2 potential changes —

With abortion, the Court basically stands pat with Roe v. Wade. Meaning, doctor and patient choice 1st trimester, “reasonable restrictions” 2nd, and states can ban 3rd trimester. Perhaps the Court gets really good at adjudicating that middle area of what counts as reasonable restrictions for the 2nd trimester.

Towards clean elections [or at least, cleaner] maybe the Court balances corporate free speech with the need to have a democracy, instead of a plutocracy! :openedeyewink:

I’m picking 2015 to avoid current politics. Plus, with 1980 that gives a nice round 25 35 years.

Welcoming your ideas. :)
 
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“They can't put me on the court, just like you can't put Evelyn Lang on the
court. It's Sheltons from here on in.”

Meaning centrists.

And . . . would that that were the case!

In my perfect Universe, we’d have 5 centrists on the Court and 2 liberals and 2 conservatives. Instead, at times we’re lucky to have 1 swing vote, such as Sandra Day O’Connor or such as Anthony Kennedy [ although the two of them did overlap for a number of years].
 
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I know you are talking 8 to 43 years ago. But a lot of these decisions are still hit topics or otherwise have direct effect on politics and laws today. So I think this is going to run head on into the “modern politics “ problem.
 
otherwise have direct effect on politics and laws today.
I urge you to just be careful, as I will be.

I mean, since we aren’t living in a world in which we’re been contacted by semi-benign extraterrestrials and frequently speak of “Before & After” contact, I think potential closeness to current is going to be an issue and par for the course for pretty much any post-Cold War topic.

I guess as we bump close, and get to to 2014 and 2015 for example, we’ll just have to make an extra effort to pretend a “Veil of Ignorance.”

As an example, I can remember being a senior in high school way back in 1980 and abortion being an issue in the one and only debate between Reagan and Carter.
 
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July 1, 2005 —

‘ . . . The Court has also embarked on a so-called “federalism revolution” that limits the power of Congress while protecting the prerogatives of the states. . . ’

Meaning, rolling back the New Deal norm of the federal gov’t being able to regulate the economy. In other words, a lot of conservatives are not exactly “stand pat” kind of people. To the contrary, they can be pretty radical guys and gals!


—> National Review is an old school conservative publication, say, generally in the tradition of Ronald Reagan
 
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Get Marshall to retire under Carter and O'Connor under Obama.
Thurgood Marshall was replaced by Clarence Thomas in 1991, and Sandra Day O’Connor by Samuel Alito in 2006.

Both these replacements were really conservative guys. And I don’t mean an Edmund Burke stand pat, reform-by-careful-medium-step type of conservative.

PS 2015 is merely my best guess as far as how late we can go before spilling into current politics.
 
Unfortunately many quoran right wingers will note that Buckley and Citizens United apply Mcculloch to the first Amendment a la Bostock so youd need a way to explain how the Press differs from banks.
 
Not to put too fine a point on it, but I think the OP is engaging in the fool's errand that is attempting to evaluate SCOTUS's jurisprudence through the lens of conventional partisan politics. Which often ends badly as, outside of hacks men like William O. Douglas -- who wore on his sleeve that he thought of himself as a black-robed super-legislator -- most judicial decision-making has precious little attachment to the considerations of conventional partisan politics. While it is undeniable that there is a correlation between personal political beliefs and judicial philosophy, correlation does not equal causation. A fact which even I still need to remind myself sometimes when I read Sotomeyer's opinions. (Full disclaimer: I am a dues-paying member of the Federalist Society and was, too many years ago, president of my law school's student chapter.)

But to try to make a good-faith effort to respond to the thread's premise, if you want a less successful and ascendant originalism, you need to not provide it such fertile ground to take root in. As the originalism developed by men like Robert Bork and Antonin Scalia was the intellectual backlash to the near-total triumph of legal realism as a school of judicial philosophy. It is difficult to convey, by the mid-Sixties, just how thorough legal realism's command of the bench was, as not only had it bested rival schools of judicial thought and displaced them as the primary method of judicial decision-making, but had so thoroughly discredited the alternatives that it had become the only school of judicial thought. I will refrain from addressing whether that was a good thing for fear of kicking up discussion of contemporary politics, but legal realism's primacy bred a considerable amount of intellectual laziness amongst its practitioners, with it becoming a bit of a habit of SCOTUS's majorities to determine the correct answer and then reverse-engineer the reasoning for their decision from there. The most infamous example of such is, surprisingly, neither Griswald nor Roe (though the latter certainly does deserve an honorable mention), but rather Furman v. Georgia, in which every justice wrote a concurrence or dissent and the majority concurrences could not agree upon a common rationale for their holding beyond that the holding was, in fact, the correct one. Against the backdrop of the hangover from the Warren and Burger Courts' excesses, it is scarcely surprising that a craving for a more structured and grounded theory of judicial decision-making would manifest itself. And so long as such is desired, when the political consequences of the Warren and Burger Courts' decisions make themselves felt and there becomes a political market for an alternative to legal realism, you're going to have a long march through institutions similar to originalism's for whatever develops to satisfy the intellectual need which OTL's originalism did.

So if you want less originalism, you need to nerf legal realism's successes in turn. How precisely you choose to do that is itself an episode in going down rabbit-holes, as "nerf legal realism's successes" can range from everything to the simple expedient of butterflying William Brennan's appointment to more elaborate and fanciful projects like an entire alternative 14th Amendment P&I Clause jurisprudence which butterflies Plessey and makes much of the Twentieth Century's legal history utterly unrecognizable from its first- and second-order effects. As opposed to "simply" having Eisenhower avoid recess-appointing Brennan, whose first-order effects are just the ones that unleash all of the butterflies, with -- just for a start -- the entirety of modern abortion jurisprudence going overboard as Griswald, Roe, and Eisenstadt all are unrecognizable without Brennan's backroom political skills in putting together majorities.
 
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First you gotta define "Center" and that will be a battle on itself
First off, welcome to Alternate History! I hope you find us a feisty and fun bunch. :)

Okay, as far as taking a run at defining Center . . .

I’d say accepting the New Deal norm of Congress regulating the American economy. This is something I support.

I’d say Centrist also includes accepting the post-WWII norm that Congress has abdicated its Constitutional power to declare war [or not declare]. This is something I’m far less comfortable accepting. But it’s an absolute fact of life, including for major wars like Korea and Vietnam. All the same, probably be a big mess if the Court tried to step into the middle of this.
 
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will note that Buckley and Citizens United
First off, I’d welcome specifics that Citizens United (2010) is not as terrible as it looks. Because at first glance it looks like the Supreme Court is saying both rich people and corporations can spend whatever money they damn well please on elections, and don’t even have to declare it.

Well, make a threshold where I do have to declare. If I as a private citizen spend more than, say, $20,000 telling people who they should or shouldn’t vote for then— I’ve got to declare myself as a contributor on some kind of real-time web site.

And balance free speech with other values. Just like religious freedom is balanced, etc, etc.
 
legal realism's primacy bred a considerable amount of intellectual laziness amongst its practitioners, with it becoming a bit of a habit of SCOTUS's majorities to determine the correct answer and then reverse-engineer the reasoning for their decision from there. The most infamous example of such is, surprisingly, . . . Furman v. Georgia, in which every justice wrote a concurrence or dissent and the majority concurrences could not agree upon a common rationale for their holding beyond that the holding was, in fact, the correct one.
I welcome you in the mix. You obviously know your field extremely well. I’d make 2 requests, although seemingly contradictory are actually part of a pair—

1) assume I’m within the normal range of intelligence although the lower side of normal, still 100% worthy of respect :) , and

2) write as if your reader is actually ever so slightly smarter than you are, but just in another field and you’re giving the executive summary.

Please try to keep down the listing of unfamiliar cases. Was Furman the 1970s case case which abolished the death penalty for a while and one of the rationales was that it was cruel and unusual because it was too much a bolt from the blue?

If the Court accepts that Congress has yielded to the President as far as declaring war, would this be an example of legal realism?

What do you think of the San Antonio case, also front the 1970s, in which the Court bailed on school desegregation? And if that’s loaded language, please unpack.

And lastly, did you happen to see that West Wing episode?


PS Putting my cards on the table, my big issue is the slow and tragic decline of the American middle class. And people almost always respond worse to slow-motion disasters.
 

ExamoorHorn

Banned
Okay, as far as taking a run at defining Center . . .

I’d say accepting the New Deal norm of Congress regulating the American economy. This is something I support.

Which is not center at all, but in fact a left wing bend. At least left wing in the US as Europe has right wingers with economic control.

SCOTUS can't really be center, or right or left. They can be either originalist, revisionist, centralizer or devolutionists. SCOTUS doesn't really map into partisan politics well because their point isn't to pass legislation and policy but judge it's legal merits based on the constitution and judicial parameters of the USA.

For a example: even if SCOTUS unanimously agrees with New Deal political leanings of economic control they could and would unanimously strike down New Deal legislation calling for total control of the press under economic arguments of market control, becauae the point here would be not the political reason but the legality and constitutionality of the decision. Bit of a extreme example but there it is.
 
I’d say the best way to maintain Centrism on the court would be the following (if stretching the PoD):

1) William O. Douglas holds out until Carter is inaugurated. (Replaces John Paul Stevens)

2) Potter Stewart retires in 1980 and Carter gets to replace him. (Replaces Sandra Day O’Connor)

3) Thurhood Marshall hangs on until Bill Clinton is inagurated. (Replaces Clarence Thomas.)

Even with Reagan/HW, you’d still have a decent liberal wing as the pre-Clinton court would consist of: Marshall, Rehnquist, Scalia, Kennedy, Souter, White, Blackmun, Shirley Hufstedler (Carter) (died 2016), and Charles H. Kirbo (friend of Carter, died 1996 from complications due to gallbladder surgery, so can be butterflied, though he was 79).

With Clinton getting 4 nominations rather than 2 (Marshall and Kirbo), that would most likely flip Bush v. Gore, which means 2 terms of Al Gore, who gets at least 1 justice (Rehnquist).

There’s also just Republicans not being so intransigent and letting Garland onto the court, and not pushing ACB through at the last minute (Ginsburg retiring while Dems had a majority in the Senate/Dems winning in 2016). Also, if you butterfly Gorsuch, there’s the possibility that Kennedy doesn’t retire, so TFG goes from 3 appointments to 0, and The Big Guy gets 2 instead of 1.

Also, anyone who talks shit about William O. Douglas can pull a Kavanaugh and fight me on a boat in Rhode Island.

(If you really wanna stretch it, have Fortas be named Chief Justice and retire in 1980 (Carter +1), as well as have Thornberry serve until at least 1993, though he could go for life, as he died in 1995). This butterflies Burger (-1 Clinton) and Blackmun (-1 Clinton, which is cancelled out by Thornberry).
 
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ExamoorHorn

Banned
... Centrism is full Democrat chosen judges? You just suggested depriving a entire half of all the political US establishment a choice of judge. Unless some of those are obviously R leaning as gestures of good will that is the opposite of what OP seems to imply.
 
... Centrism is full Democrat chosen judges? You just suggested depriving an entire half of all the political US establishment a choice of judge. Unless some of those are obviously R leaning as gestures of good will that is the opposite of what OP seems to imply.
I mean, considering how centrist Garland is, and how extreme the judges chosen by the loser of the 2020 election and Alito/Thomas are, yeah.

I’m sure Clinton would’ve nominated Amelia Kearse, who was a Republican, and Reagan and HW still get nominees, as well as Nixon, plus if Bush v. Gore goes the other way, a Republican would win 2008, so there’s that.

Centrism can occur regardless of party, especially when there’s a difference between having a Supreme Court full of Manchin’s versus a court full of Jeff Sessions’, even if the presidents who nominte them are from one party.
 
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I mean, considering how centrist Garland is, and how extreme the judges chosen by the loser of the 2020 election and Alito/Thomas are, yeah.

I’m sure Clinton would’ve nominated Amelia Kearse, who was a Republican, and Reagan and HW still get nominees, as well as Nixon, plus if Bush v. Gore goes the other way, a Republican would win 2008, so there’s that.

Centrism can occur regardless of party, especially when there’s a difference between having a Supreme Court full of Manchin’s versus a court full of Jeff Sessions’, even if the presidents who homages them are from one party.
and the evidence code and throw Jersey a bone are pretty much decided 9-0 regardless of party. By throw Jersey a bone i mean NJ has won every case it has brought against New York.
 

ExamoorHorn

Banned
Garland. A centrist. On economic matters maybe, dude is absurdly partisan at his job at the moment and one shudders to think how he would enjoy being a actvist on the bench. This is the guy who signed a order for the FBI to go ahead on survailance of parents who argued with school boards about education subjects (which I see "fact checkers" insist is false because "Akshually he never said they were terrorists, he just authorized the FBI to start survailance of these parents with the same methods they use for terrorist threats!" lmao) and who authorized a FEDERAL RAID ON A FORMER POTUS for a "crime" not only legally nebulous but downright petty reason (FBI spent months combing over documents of Trump, he had given them full access. They never asked for the docs back, just full raid. And of course Biden had docs from his time as VP on his home he shared with Think Tanks but that was ok I guess right?)

I don't think you understood what OP was asking for and at this point I am afraid to even engage. You seem to have a very skewed idea of what centrism and average people think. Probably better for you to go to the political chat where you can pretend American politics are some saturday morning cartoon of good vs. evil.

Honestly the gall... "One side with full control is centrism"
 
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