Thread by @SeanTrende

This is actually a major contingency point in US history. LBJ convinced Goldberg to resign so he could appoint his friend Abe Fortas to the Court, knowing that Fortas would give him a heads' up if the Court was going to find his legislation unconstitutional. 1/

https://twitter.com/bendreyfuss/status/1307794226873335809

By the end of LBJ's second term, there was an overwhelming liberal majority: Warren, Marshall, Fortas, Douglas, and Brennan. Yes, Brennan was the swing justice on that Court, which did things like declaring shopping malls to be state actors subject to the 1st Amendment. 2/

Warren was afraid he wouldn't make it through Nixon's term if he won, so in June of 1968 he announced his retirement. LBJ quickly nominated Fortas for the position. But the Fortas nomination ran into trouble over allegations of impropriety and 3/

LBJ offended majority leader Russell by not nominating a district court candidate he favored. Plus, the "conservative coalition" of Rs and Southern Ds thought that they might prefer Nixon's choice over LBJ's. 4/

So, the Fortas nomination failed on a vote held October 1 of 1968. As it turned out, Fortas actually was a crook, though not because of the concerns raised pre-vote. So ultimately, he had to resign, and Nixon got to name two justices in his first year. 5/

That wasn't quite the end of the Warren Court, but replacing two of its more liberal members with Burger and Blackmun did move the Court rightward (and Potter Stewart decided that he wouldn't overrule any Warren Court precedent 5-4). 6/

So if LBJ doesn't pressure Goldberg to head over to be UN Ambassador so he can appoint a crony (who *was* an outstanding lawyer and good justice aside from poor judgment outside of his decisions), LBJ probably names Warrens' replacement. 7/

And here's the rub: Goldberg lived until 1990. So you probably have a very, very liberal Supreme Court majority, with William Brennan as the swing justice, until Douglas' retirement in 1975. Heck, 8/

Douglas might well have refused to retire -- senility and incontinence be damned! -- until 1977 in this scenario, enabling Carter to name his replacement. And that is how LBJ's replacement of Arthur Goldberg changed the course of history, bigly.

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