PC: Supreme Court in an ATL (Lincoln survives)

Got to thinking about this scenario during this thread, wanted to run it by you guys (and, JTBC, I'm only looking at the Supreme Court aspect of this TL).

PoD is Lincoln not getting shot. One of the effects is that the Judicial Circuits Act isn't passed (or doesn't deny Lincoln another SC appointment). In 1867, following the death of Justice James Moore Wayne and several strokes of Justice Robert Cooper Grier, Lincoln appoints his Secretary of War, Edwin Stanton -- who dies shortly after Lincoln leaves office -- and, with great controversy among the Radical Republicans, a Southern Democratic Unionist -- former Attorney General of Kentucky John Marshall Harlan. (Ulysses S Grant meanwhile, succeeds Stanton as Secretary of War, and enjoys something of a political education working in the cabinet, making him a more astute politician when he gets elected President in 1868.)

President Grant, for his part, gets to appoint three Justices during his time in office, to replace Justices Stanton, Nelson, and Chief Justice Chase. In the first case, he appoints known litigator (and OTL Justice) Joseph P. Bradley; by his second term, though, he finds he needs to mollify the Radicals in order to smoothly confirm his choice for Chief Justice, Sen Roscoe Conkling (who had refused OTL), and so appoints Rep John Bingham to Nelson's Associate Seat.

And so, in early 1874, the Supreme Court is:
Chief Justice Roscoe Conkling (appointed 1874)
Justice Nathan Clifford (appointed 1858)
Justice Noah Haynes Swayne (appointed 1862)
Justice Samuel Freeman Miller (appointed 1862)
Justice David Davis (appointed 1862)
Justice Stephen Johnson Field (appointed 1863)
Justice John Marshall Harlan (appointed 1867)
Justice Joseph P Bradley (appointed 1870)
Justice John Bingham (appointed 1873)

My first question is, how plausible do these appointments sound? If the scenario thus far works -- [consolidated below]

EDIT ADD: First, the Slaughterhouse Cases -- of the Justices sitting at this time in both OTL and TTL, four (CJ Chase, Field, Swayne, and Bradley) found in favor of the butchers while three (Clifford, Miller, and Davis) found on behalf of the city company, with the later saying the 14th Amendment did not apply to privileges and immunities conferred by state citizenship; since I can't imagine such a narrow reading being accepted by Harlan or Bingham, the 14th Amendment would be extended to state immunities, likely by a six to three ruling.

Regarding US v Cruikshank -- you've got Swayne, Miller, and Field who OTL took a narrow reading of the Amendment, while Clifford, Davis, and Bradley were in the dissent; once again, I can't see Harlan or Bingham accepting the idea that, in light of the 14th, neither the First nor Second Amendments could limit the powers of the State governments in respect to their own citizens, and I can't see why Conkling would either* (given his role in crafting the Amendment). Either way, this would again make the 14th Amendment far stronger, much sooner, than OTL.

Finally, if the 14th is getting this kind of support around this time, the Supreme Court may want to rule sooner on the constitutionality of the Civil Rights Act of 1875 (assuming the legislation still happens). If they rule on the issue in, say, 1876, I imagine you'll have some Justices (like, in OTL, Field, Miller, Bradley) saying the law is unconstitutional in its entirety, while others (Harlan, Bingham) holding it to be constitutional in its entirety. That said, I can see a middle ground (perhaps joining an opinion written by Conkling?) holding that while Congress overstepped its authority in desegregating public accommodations, it was within its rights to forbid segregation "in such places as which require public license or public funding".

*If nothing else, it would weaken the Federal Government's hand in protecting "corporate persons" from the states...:rolleyes:
 
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Weren't there ten justices in Lincoln's day?

In a WI many years ago, I too had Lincoln appointing Harlan, but also Ben Butler to the other vacancy, with the observation that "A touch of outright lunacy might enliven or even improve the Bench".
 
Weren't there ten justices in Lincoln's day?

Hm, I don't think so... (checks a case from said era) Nope, counted nine.

In a WI many years ago, I too had Lincoln appointing Harlan, but also Ben Butler to the other vacancy, with the observation that "A touch of outright lunacy might enliven or even improve the Bench".

Ah, well in that case, by the later 1870's, he'd likely be on the court instead of either Bradley or Bingham... probably the latter, unfortunately.

EDIT ADD: Though, honestly, he'd likely vote the same as I have Bingham voting in the above scenario, so...
 
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Hm, I don't think so... (checks a case from said era) Nope, counted nine. ..

Actually it seems there were ten in April 1865.

Salmon P Chase (CJ) 1864-73
James Wayne 1835-67
John Catron 1837-May 30, 1865
Samuel Nelson 1845-72
Robert Grier 1846-70
Nathan Clifford 1858-81
Noah H Swayne 1862-81
Samuel F Miller 1862-90
David Davis 1862-77
Stephen J Field 1863-97

Curiously. however, Andrew Johnson seemingly never appointed a successor to Justice Catron, though at that time his quarrel with Congress was still in the future; so it is possible that the tenth seat was never intended to be permanent. I'll do some more searching.
 
Actually it seems there were ten in April 1865.

Ah, it seems you're right -- Field was appointed to an added Supreme Court seat in 1863, created by the Tenth Circuit Act of 1863, and the Judicial Circuits Act (of 1866) reduced the Supreme Court by two, down to eight -- so the Court was only thus expanded for a very brief period, OTL. Well, that may change everything -- I can't help but think, though, that Congress would want to reduce the Court size down to nine as soon as possible, since an even number has so much potential for tie votes. So let's see how this may work out:

Lincoln survives assassination, no Judicial Circuits Act of 1866. So he gets to make three appointments in his second term -- replacing Justices Catron (65 or 66), Wayne (67), and Grier (67 or 68) respectively. Then, following the completion of the Transcontinental Railroad in 1869, Congress decides the Supreme Court is superfluously filled, and passes a Judiciary Act stating the next (Associate) vacancy will go unfilled; this means that Grant may well only get one Supreme Court appointment in his eight years as President, that of the Chief Justice.

If Lincoln decides to appoint Harlan in 1865, and Grant appoints Conkling as Chief Justice (as he wanted to OTL), then how Lincoln fills the two remaining spots becomes all the more important (since TTL is unlikely to see Bradley, who dissented in both the Slaughterhouse and Cruikshank cases, appointed to the court). Now, I feel confident that at least on of these seats will be taken by a Radical Republican (like Bingham or Butler), but I'm not sure what to make of the remaining possibility. If Cruikshank is to go the other way TTL, then either Chief Justice Conkling or this final Lincoln appointee are going to have to join with said side -- unless he appoints Stanton, in which case Grant's back to getting two appointments, one of whom is still likely to be Bradley. So let's see where that leaves TTL's list of Justices:

John Marshall Harlan (1865-1901)
Edwin Stanton (1867-1869)
John Bingham or Ben Butler (1867-1893(~))
Joseph Bradley (1873-1892)
Roscoe Conkling (1874-1888)
 
Looking over the major Supreme Court Cases, and at least as far as those under the Chase Court go, it seems that most of would probably go the same as OTL (assuming they still reach the Court at all TTL, as Garland, for example, would not). I can't say for Pervear v Massachusetts, since I don't know how the Court voted on it, nor can I say for Taylor v Taintor, since I can't say how Harlan or a Radical Republican would vote on it. There might be an interesting butterfly in a case like Bradwell v Illinois, since I can see someone like Butler joining Bradley's rampantly sexist opinion, which in turn (depending on Harlan) could end up making it the opinion of the Court.

But other than this, it looks like the first major effect felt in TTL, at least in where decisions by the Supreme Court are concerned, is going to be in the 14th Amendment issues raised by the Slaughterhouse Cases, and then the butterflies will really start flying under the Conkling Court...
 
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