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December 03, 2009

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Well, my first thought was Brown vs. Board of Education, but a quick read of Wikipedia brought out that most of the legislation the Supreme Court overturned during the early Civil Rights era was state or local legislation, which that amendment wouldn't protect.

It's possible that segregationists might have been able to get some kind of a segregation-protecting law passed in 1958-1962, but it would have had to fairly bland and toothless to get two/thirds, and a strategy of chipping away at the most obnoxious parts would probably eventually kill it.

This would put more stress on the Democrats, earlier, but probably wouldn't result in a worse outcome than we got.*

Probably no Roe vs. Wade, but that not happening doesn't really look like a failure mode situation.

In other words, doesn't look like a new failure mode, no.

*The possible alternate 1960's are fascinating.

Internet pornography as we know it would not exist. The censorship clause of the Communications Decency Act of 1996 passed the Senate with 84 votes; I'd be amazed if Congress didn't overturn the unanimous (well, technically 7 with 2 concurring) Supreme Court decision that junked the CDA.

I'm not sure that would be a bad thing, to be honest.

More substantively, there are all the decisions limiting police powers, like Miranda. One can easily imagine a world where the law-and-order reaction of the seventies is much harsher, with higher resulting levels of racial tension.

Even without changing any of the basic civil rights decisions, that could lead to a very ugly cycle and take American history down a significantly more dystopian path.

And then there are decisions like Griswold or Loving. Would they have been overturned? I suspect not ... but the chance would have been there, with further untoward social consequences.

But wait! Game on. Go Jets!

In practice, this would mean that the Supremes would be writing controversial decisions with the inexitable Congressional review in mind. They would probably be more specific and more limited, but it wouldn't necessarily mean that the Court's direction changed. It would simply be slowed down.

For example, I don't see the Miranda warning specifically surviving. However, I remember enough paranoia about The Man that the Supreme Court should have been able to write an opinion expanding the rights of the accused that at least 40% of the Congress and country would support.

There's an upside here too: while the Court would have to be more explicitly politically aware than in OTL, nominations would less politically loaded and the Court would in some ways be less politicized.

On the whole, you're probably right that the legal system would be somewhat less rights-based and that broadly this would not be a good thing. But does it really rise to the level of a failure mode?

Hope you enjoyed the game. I get to look forward to the Browns getting stomped by the Chargers.

Upon looking it over again, it turns out that almost all of the big Supreme Court decisions had to do with the states, rather than acts of Congress.

Y'know, David, your point about civil rights might apply to everything. A Wheeler-Bone world might look pretty much identical to our own.

Did the Supreme Court overturn any controversial federal legislation at all?

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