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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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