In a recent Civitas Essay, I looked at how the current legal order derives its roots from the events of September 11, 2001.
What follows is a counterfactual exercise: what might the legal architecture in 2026 resemble if the 2001 terrorist attacks had never occurred? This concise thought experiment is meant to shed light for today’s generation on just how decisive 9/11 was for the core issues that now define the Supreme Court.
Counterfactuals, by their nature, are hypothetical and not factual. Approach everything I present here with a generous measure of skepticism.
Imagine that September 11, 2001 was a day like any other. Perhaps the connections were made and the attacks were thwarted. Or perhaps the plot unraveled when the Saudi suspects were more attracted to piloting planes than to landing them. Let us examine three major assumptions.
First, consider the 2002 midterm elections. In our actual history, President Bush defied the odds and his party gained seats in both chambers. In this hypothetical, however, Bush—unbuoyed by a post-9/11 surge—lost seats in both houses. With a robust Democratic majority in the Senate, it is unlikely that John Roberts would ever have been confirmed to the D.C. Circuit. Likewise, many of Bush’s strongest nominees might never have reached the judiciary. The size of the bench would have been substantially smaller when a future Supreme Court vacancy arose.
Second, incumbents tend to win re-election more often than not. But absent a war on terror, an unpopular Bush—elected by a razor-thin margin—might have struggled to point to legislative wins. The parallels with his father could have seemed more evident. Indeed, there has long been speculation about whether Bush would have secured another term without 9/11. Suppose he did not, and a Democrat—John Kerry, Al Gore, or another figure—captured the White House in 2004. Chief Justice Rehnquist’s cancer would have progressed regardless of the White House’s occupant. His death in September 2005 would likely have been unavoidable. The bigger wild card is whether Justice Sandra Day O’Connor would have still stepped down in June 2005 to care for her husband’s worsening dementia. O’Connor reportedly preferred retirement during a Republican administration. Perhaps she wanted to atone for her vote in Bush v. Gore, which elites ridiculed as partisan. Or perhaps her duty to care for John O’Connor would have been too strong to keep her on the bench for another three years or more.
Third, assuming that both O’Connor and Rehnquist exited the bench in 2005, a Democratic President would have been able to tilt the Court’s balance for a generation. What had been a right-leaning 5-4 majority could have become a solid 6-3 liberal majority. Justices Antonin Scalia and Clarence Thomas would have stood as the lone full-time conservatives, with Justice Anthony Kennedy likely aligning more with the Court’s liberal flank. There is more. With the benefit of hindsight, we know Justice David Souter announced his retirement soon after President Obama took the oath. Souter, who disliked Washington, would likely have stepped down in 2005 under a Democratic administration. Justice John Paul Stevens, who ultimately left the Court in 2010, might have moved on a few years earlier as well.
One can imagine that a Democratic president might have nominated Judge Sonia Sotomayor to fill O’Connor’s seat. For Chief Justice, the pick could have been Merrick Garland, who would have come frustratingly close to joining the Court. Or, advancing a generation, Elena Kagan might have brought her leadership from Harvard Law School to the Supreme Court. Other potential nominees could have included Judge Diane Wood and Robert Katzmann. Alternatively, Republicans might have used a judicial filibuster to block the Democratic consolidation of the Court. In that scenario, I would expect Senate Democrats to employ the “nuclear” option a few years earlier than it actually happened.
In this alternate reality, the liberal 6-3 majority would likely include four members under fifty, while the conservative minority would average close to seventy. As conservative as the Court is today, this variation would push it toward a considerably more liberal stance. Rulings like Dobbs, Kennedy v. Bremerton School District, and Students for Fair Admission would have been unimaginable. Even earlier decisions such as District of Columbia v. Heller and Free Enterprise Fund might never have occurred. The notion of a unitary executive would scarcely have migrated from academia into doctrine.
