What Would Have Happened In Heller If Bush Had Nominated Luttig and Wilkinson Instead of Roberts and Alito

In 2005 and 2006, two vacancies arose on the Supreme Court. President Bush initially picked John Roberts for the O’Connor seat, but then elevated Roberts to the Chief seat after Chief Justice Rehnquist died. (I sometimes dream what would have happened if Rehnquist hung on a few more months, and we got Chief Justice Alito). Bush tapped Harriet Miers for the O’Connor seat. After an outrage, Bush picked old-faithful Sam Alito for that position. Still, we know from The Nine and Supreme Conflict that Bush considered two other Fourth Circuit judges: Judges Luttig and Wilkinson. It is hard to imagine how the Supreme Court would have proceeded if these two judges were picked instead of Roberts and Alito. It is even tougher to imagine the different leadership styles of Wilkinson and Luttig. Would either of them have played well with Kennedy? It’s also difficult to presume stasis. Things change and people change. Indeed, I tend to think that the Chief seat liquifies the backbone of the steeliest occupant. It happened to Rehnquist. It happened to Roberts. I hope it happens to Kagan one day. Still, it is fun to imagine some counterfactuals. And one particular counterfactual is plausible. D.C. v. Heller (2008) was one of the most significant decisions of the early Roberts Court. At that time, Chief Justice Roberts and Justice Alito had only been on the Court for two full terms. But their votes were essential to the 5-4 majority. By the time Roberts and Alito arrived […]

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