What could the US Supreme Court have done with the incorporation doctrine?

Answer 1

Yes, the US Supreme Court has used selective incorporation to apply the Bill of Rights to the states via the Fourteenth Amendment Equal Protection and Due Process Clauses, as such application became relevant. The First, Second, Fourth and Sixth Amendments are fully incorporated; the Fifth is mostly incorporated; the Eighth is partially incorporated; the Third is incorporated only in the Second Circuit; the Seventh is currently unincorporated.

If the Court didn't support incorporation the Bill of Rights would have become applicable to the states all at once, or not at all.

For more information, see Related Questions, below.

Answer 2

The US Supreme Court could have applied the Bill of Rights to the states through total incorporation (also called "mechanical incorporation" or "complete incorporation") by upholding the constitutionality of Congress' civil rights legislation passed under the Fourteenth Amendment, Section 5, Enforcement Clause or the Section 1 Privileges and Immunities Clause, but rejected the opportunity. Instead, the Court has used the process of selective incorporation, which applies the Amendments in a piecemeal fashion as required by decisions in individual cases.

As of June 2010, only the First, Second, Fourth and Sixth Amendments have been fully incorporated, and the Fifth Amendment has been mostly incorporated. The Supreme Court will decide in June 2010 whether to incorporate the Second Amendment, which, along with the Seventh Amendment, are currently unincorporated.

For more information, see Related Questions, below.