Picking up on the thread last week about the use of counterfactuals in legal history, I thought I’d list some of my favorites in constitutional law. (For you law review editors out there, this would be a great symposium topic (or a book, for that matter.)). Now obviously there are many 5-4 Court decisions where we could play the game of saying what would have happened if one Justice in the majority changed his or her mind, but let’s go for some more creative examples.
1. Senator Huey Long is not assassinated in 1935, and Congress proceeds with its inquiry (already underway) into whether Louisiana is in violation of the Guarantee Clause. (I wrote an article about that one.)
2. The Populist Party decides to schedule its 1896 nominating convention ahead of the Democratic National Convention. (I talk about that one in my forthcoming book on William Jennings Bryan.)
3. Oliver Ellsworth does not resign as Chief Justice of the United States in 1800.
4. One more Senator votes to convict President Andrew Johnson in 1868 and he is removed from office.
5. Justice John Clarke, a progressive who often voted with Holmes and Brandeis, does not resign in 1922 (after just six years on the bench) to run a campaign for American participation in the League of Nations and get replaced by Justice George Sutherland, one of the “Four Horsemen.”
6. President William Henry Harrison doesn’t catch pneumonia and die. As a result, M’Culloch v. Maryland is overruled. (I talked about that one in my first book.)
Any additional nominations?