Alternate Supreme Court Justices

Well with Fortas, it was actually a concerted effort by the Nixon administration to create the sense that Fortas would be investigated (even though it was unclear if that could be done outside of impeachment) including Nixon convincing Warren that Fortas was going to be removed. So I think Fortas actually stays.

Fortas is an interesting POD because if he hadn't been forced off the court there's a good chance he would have retired under Jimmy Carter, who IOTL didn't get a chance to nominate a Supreme Court Justice. The most plausible candidate mentioned on the relevant Wikipedia page is Shirley Hufstedler, who whould have been the first female Supreme Court Justice.
most plausible candidate mentioned on the relevant Wikipedia page is Shirley Hufstedler


1980 photo of President Carter with National Association of Women Judges.

I like how this photo is curiously partially faded!

“ . . and a 1978 law that created 153 vacant judgeships. . ”

Like this article says, a “perfect storm” of opportunities. Different women candidates also benefitted from a new vetting system which seemed to be a move away from the good ol’ boy network of political influence and individual Senators having so much direct influence.
Fixed 18 year terms might make things even worse. The Court might be even more pro-corporate power, because where else are you going to get the cushy jobs after retirement? And even less willing to stand up for the rights of minorities, such as transgendered persons, simply because it’s not a strong majority position [I think some transgend issues have thin majorities]

I’m just exploring ideas and asking you to explore along with me.
I tend to see the dark side first.;) If you've got a really good idea, I'll listen.

The "lotto court" sounds promising. However,:openedeyewink: it strikes me that could lead to a very mediocre SCotUS (you're not only picking the best any more) and a very partisan one (unless you change the procedure for appointing, selecting, or electing the judges in the pool), because (AIUI), now, it's effectively a perk for Party-selected judges.

I think you've hit on two problems with SCotUS term limits, but only two...:eek: Sad to say, there are a host of minor (to most people) cases that have significant implications in how business is done, among other things.

I haven't better idea, or I'd offer it. (The OTL approach seems the best of a bad lot.)

I do wonder about making impeachment easier. If a decision is markedly (self-evidently?) partisan... (Or, as in the case of Roberts {was it?}, contrary to his statements {under oath?} at confirmation... {Or Thomas & his wife.}) That has the drawback of impeachment being used as a threat every time a decision is disagreed with strongly (which is almost always...:rolleyes:), ultimately being misused, and eventually having no teeth at all.

Would a larger court (11 members? 13?) make a difference? (It would make reaching decisions harder, I think.) Would a smaller court (7? Even 5, the practical minimum?) be better? (5 is ultimately best for resolving disputes, but 7 avoids a sense of "ganging up" on a minority.)

I also wonder if there's an issue with the candidates. It's been a Thing for awhile, now, to appoint sitting judges (with reason), but I don't see why any PotUS can't just select even very young lawyers of a preferred ethnicity and, indeed, practise: a Latina civil rights litigator from East L.A., say. (In this way, you might see a young Obama-analog going to SCotUS in his late 20s or early 30s, rather than the Senate.) Getting these confirmed would be problematic, I recognize...
If he said something about Roe v. Wade bring established law, he was confirmed back in Oct. 1991. And I kind of think some sort of “statue of limitations” would apply.
That makes me think: is there a standard for SCotUS to overrule precedent? If they're going to change well-settled law, can there be a minimum standard established before SCotUS can even grant [url=""|certiorari[/url]? Or is that interference in the process Congress isn't Constitutionally entitled to?

In similar vein, if a Justice (who does have a life appointment) contradicts himself (ever) in his ruling(s) (opinion{s}), can he (should he) be impeachable on that basis--no matter how long ago he said it? That would hang Thomas pretty nicely.
One of the best *moderate* court reform ideas I've heard was drawing the Justices at random from the Circuit Courts for each term. It makes the politics of any case impossible to predict, so that hopefully, confirmations are based on juridical skill and not political affiliation.
If it’s a pool of otherwise qualified people, I think random has some real potential.

And I’ll give you another example. With medical school applications, you could divided them into three stacks. One would be people clearly qualified across the board with grades, MCAT, and some kind of volunteer work or individual projects. All of these people get invited. And then there are people who just don’t meet the mark. None of these get invites.

And then there are people with plenty good enough but not great qualifications. And this might be 60% or maybe even 70% of the total. And from these we just pick randomly and we let people know that we are picking random.

That is, we don’t try to pretend the process is more fine-grained than it realistically can be.
Last edited:
I do wonder about making impeachment easier.
A former friend worked at a chemical plant here in the Houston area. He said, No one likes firing someone, and therefore people put it off. Well, actually, the occasional asshole does like firing people! But let’s say, most people most of the time don’t like firing.

And therefore,

Hire someone on contract, and if they work out, in six months, you can make it permanent. If not, the job just comes to an end, it was never scheduled to go longer. People have a much easier time doing this.

And we kind of do this with U.S. Courts of Appeal,

But then you get cases like someone’s been on the Appeals Court for less than a year, and they get elevated all the way to the Supreme Court. The party in power wants to get a lot of bang for their buck and get someone relatively young. And I’m generally against hardwiring in things. I just wish there was more of a tradition of nominating and confirming centrists. And I just wish age 55 was more the standard age for nomination to SCOTUS with some range on either side of course. [Lewis Powell, Jr. may have been close at about age 60 64, and he served fifteen years]
Last edited:

Paper Chase TV show

This was a 1973 movie. But I think it was a better TV series for one year on CBS in 1978, and then for three years on Showtime in the 1980s.

It was a sweet show. It showed the students working together trying to understand the law. Occasionally, one student would even ask another what he or she thought of the ethics of something, and was actually interested in the answer! When actually . . . I think students are going to be so busy “distilling” cases and “shepardizing” the relevant judicial decisions that they’re not going to have time for any of this.

No, I’m not a lawyer. But we did have a lawyer marry into the family. :)

Last edited:
I misunderstood your scenario. I thought you were talking about a scenario for Roosevelt winning in 1920, because I had honestly forgotten that Taft got to choose a Chief Justice. Relations between Roosevelt and Hughes were always kind of cold. Not sure about Roosevelt and Brandeis, but Roosevelt liked Jews, so it's definitely possible.
Not surprised - those men had extremely mismatched personalities, with the latter being quite bookish and not much of a people person and TR being, well, Teddy Roosevelt
Hi, I was just checking in to see if you've come up with anyone else for a HHH justice.
Well Shirley Hustedler is a real possibility, first female nominee, possibly for CJ and/or Fortas seat if he goes to CJ

Frank Johnston of Alabama, a rare southern liberal a real possibility for Black seat

Archibald Cox is an option, especially if Douglas retires (as he planned to prior to Nixon winning)

David Bazelton is a big liberal favorite, could be option for Fortas seat if he steps down.

An interesting possibility would be Ed Brooke, black senator from Massachusetts, and a Republican.

Another Senator could be Birch Bayh, who was prominent in passing two Constitutional amendments.