Alternative History

Of all the posts I've made just to satisfy myself, this probably needs to go near the head. What I had in mind when I first thought of this post yesterday probably isn't true anymore, but I still find it interesting.  You don't have to.

A post on the SCOTUSBlog in April says of Chief Justice Fred Vinson:

 There’s a pretty strong consensus that Chief Justice Fred Vinson was the worst Chief Justice of the twentieth century.  The conventional view goes something like this: Vinson was a bumbling, incompetent political hack, an intellectual lightweight with minimal understanding of complex legal issues, a card-playing crony of Harry Truman who continued to advise Truman even after taking his seat on the Court, a reactionary with horrific instincts in key civil liberties cases, and, worst of all, a major obstacle to unanimity in Brown v. Board of Education.  By this account, the best thing Vinson ever did was to die of a heart attack at precisely the right moment – in the middle of the Brown proceedings in 1953, thus allowing his successor, Chief Justice Earl Warren, to author a unanimous opinion invalidating racial segregation in public schools.

The conventional wisdom for years, and which I assumed was still true when I made my last post, was that the Brown v Board of Education ruling, from a Vincent Court would have been a divided ruling. Apparently there is even a would-be-confidential memo from Justice Douglas which asserts that very notion. And there are so many demeaning opinions about Vinson which make it an appealing conclusion.

One of his former law clerks said of Vinson:

“He was a mean little despot who was so deficient in many respects as man and judge. This man is a pygmy morally and mentally. And so uncouth.”

Talk about having problems with your boss!
 
His colleague on the Court, Felix Frankfurter, said upon hearing of Vinson´s death:

 “This is the first indication that I have ever had, that there is a God.”

I've worked with people like that too.


What I didn't know when I made the last post was that, in the Spring of 2011, the Indiana Law Review hosted a symposium on counterfactuals in constitutional history, and one of the topics was "What if Chief Justice Fred Vinson Had Not Died of a Heart Attack in 1953?: Implications for Brown and Beyond." The following is from the abstract of their conclusion:

....Chief Justice Vinson’s untimely death deprived him of the historical stature to which he otherwise would have been entitled. It concludes, contrary to many accounts, that Vinson would have authored a unanimous opinion of the Court in Brown v. Board of Education invalidating segregation in public schools. This conclusion is bolstered by Vinson’s decisions in prior race cases, by his consistent support for the policies of the federal government, by his fervent anti-Communism, and by his close friendship with President Harry Truman. Authorship of Brown would have given Vinson instant historical immortality, guaranteeing his place among the nation’s most significant chief justices.

Moreover, if Vinson had survived, Earl Warren would not have become Chief Justice. Vinson’s more likely successors would have been John Marshall Harlan (under Eisenhower) or Byron White (under Kennedy). Depending on the timing of Vinson’s ultimate departure from the court, certain key Warren Court precedents might have been decided by 5-4 votes in the other direction.

For example, we would still have had the Brown decision but Miranda would have gone the other way.

The reason I went ahead with this blog anyway is that I find the subject of alternative history, or counterfactuals, mildly intriguing.  I liked the observation I read somewhere and can no longer find which pointed out that we deal in counterfactuals all the time without giving it a thought.  If Gore were President instead of Bush, we wouldn't have gone to war in Iraq.  If Kennedy hadn't been shot, he would never have allowed the country to get as deeply committed in Vietnam as did Johnson.  If the Obama stimulus package had been of the size that Paul Krugman recommended at the time, the recovery would be further along. If McCain had picked a real Vice Presidential candidate instead of a space alien...etc. etc. etc.