The Supreme Law Without 9/11

In my new Civitas Essay, I discussed how our present legal order stems from the events of 9/11.

Here, I will spin out a counterfactual: what would the legal order in 2026 look like if the terrorist attacks of 2001 had never happened? This compressed thought experiment will elucidate to the modern generation how significant 9/11 was to the very issues that define the Supreme Court today.

Counterfactuals are just that––contrary to fact. Take everything I write here with two towers of salt.

Imagine that September 11, 2001 was a date like any other. Perhaps the dots were connected and the terrorist attacks were foiled. Or perhaps the plan fell apart when Saudi nationals were only interested in piloting jumbo jets and not landing them. Let’s walk through three significant assumptions.

First, consider the 2002 midterms. In our reality, President Bush helped beat the historical odds, and his party gained seats in both houses. But in our hypothetical, Bush, who was not buoyed by a post 9/11 bounce, lost seats in both houses. Given that strong Democratic majority in the Senate, it is unlikely that John Roberts would have ever been confirmed to the D.C. Circuit. Likewise, many of Bush’s strongest nominees likely would never have made it to the judiciary. The bench would have been much smaller for a future Supreme Court vacancy.

Second, incumbent presidents more-often-than-not win re-election. But without a war on terror, an unpopular Bush–elected by a razor thin majority–may have had a tough time pointing to legislative accomplishments. The parallels with his own father may have seemed clear enough. Indeed, there is common speculation about whether Bush would have won re-election without 9/11. Let’s assume he didn’t, and a Democrat–John Kerry, Al Gore, or someone else–won the White House in 2004. Chief Justice Rehnquist’s cancer would have progressed, regardless of who was in the White House. His death in September 2005 was likely unavoidable. The bigger wildcard is whether Justice Sandra Day O’Connor would have still stepped down in June 2005 to take care of her husband’s worsening dementia. O’Connor reportedly wanted to retire during a Republican Administration. Perhaps she would have wanted to make amends for her vote in Bush v. Gore, which was ridiculed by elites as partisan. Or, perhaps her duty to care for John O’Connor may have been too strong to keep her on the bench for another three years or longer.

Third, assuming that both O’Connor and Rehnquist left the bench in 2005, a Democratic President would have been able to flip the balance of the court for a generation. What was once a right-leaning 5-4 majority would have become a solid 6-3 liberal majority. Justices Antonin Scalia and Clarence Thomas would have been the only full-time conservatives, with Justice Anthony Kennedy likely finding more in common with the Court’s left flank. There’s more. With the benefit of hindsight, we know that Justice David Souter announced his retirement shortly after President Obama took the oath of office. Souter, who hated D.C., would likely have gladly stepped down in 2005 with a Democratic President. Justice John Paul Stevens, who would ultimately leave the Court in 2010, may have also moved on a few years earlier.

One could imagine that a Democratic president might have appointed Judge Sonia Sotomayor to fill Justice O’Connor’s seat. For Chief Justice, the pick might have been Merrick Garland, who would come so tantalizingly close to the Supreme Court. Or jumping ahead a generation, Elean Kagan could have brought her leadership skills from Harvard Law School to the Supreme Court. Other possible nominees could have included Judge Diane Wood and Robert Katzmann. Then again, Republicans may have employed a judicial filibuster to block the Democratic takeover of the Supreme Court. In that case, I would have fully expected Senate Democrats to use the “nuclear” option a few years ahead of schedule.

In this alternate reality, the liberal 6-3 majority would have likely had four members under the age of fifty, while the conservative minority would have averaged nearly 70 years old. As conservative as the Supreme Court is today, this bizarro Supreme Court would be even more liberal. Decisions like Dobbs, Kennedy v. Bremerton School District, and Students for Fair Admission would have been unthinkable. Indeed, earlier rulings like District of Columbia v. Heller and even Free Enterprise Fund would never have happened. The unitary executive theory would never have escaped the academy.