Monday, March 07, 2016

Maybe Scalia's Seat Should Stay Empty for a While

By Eric Segall

In my Salon piece this morning, I argued that a constitutional crisis over the vacant seat left by Justice Scalia might actually be a good thing for the Court and the Country. A prolonged political war over the next Justice might display starkly the politicized nature of the Court and perhaps even lead to more deferential Justices once the Court is back to full strength. The Court-packing crisis of the 1930’s had that effect and we were all better off with a Court less willing to reverse the decisions of other political officials.

The biggest push back I have received since the piece came out is my argument that a weaker Court generally favors progressives and the left much more than conservatives and the right. This thesis is always a hard sell to both sides, but history demonstrates rather starkly how the Court uses judicial review mostly to maintain the status quo and assist the rich and the powerful over the poor as well as racial, ethnic, and religious minorities.

From 1857, when the Court stopped Congress from ending slavery in the territories, until 1936, the Justices’ decisions striking down state and federal laws almost invariably favored the right. During this time the Justices invalidated hundreds of progressive economic laws while at the same time they failed to enforce the spirit of the Reconstruction Amendments by first preventing Congress from ending segregation in places of public accommodations and then rubber stamping Jim Crow at the state level. Also during this time period--not a blip but over seventy-five years--the Court did not enforce freedom of speech or freedom of religion and barely enforced the criminal procedure protections in the fourth, fifth, sixth, and eighth amendments.

Of course all that changed with the Warren Court and the early Burger Court, but that lasted for about fifteen to twenty years. Since 1986, the Court has been extremely conservative in most areas of constitutional law, including moving from protecting corporations over dissenters under the First Amendment, virtually ignoring the Establishment Clause, watering down and in some cases erasing the Warren Court’s criminal procedure protections, gutting the Voting Rights Act, and stopping Congressional efforts under Section 5 of the Fourteenth Amendment to help marginalized groups (to name just a few examples). Of course, because of Justice Kennedy’s defections, there have been a few progressive victories, mostly in the area of gay rights, but overall the Court has been a strong right-of-center institution for the last thirty years.

Now, imagine that President Cruz, Kasich or Rubio (sorry but I can’t say the "T" word) gets to replace Scalia and then another Justice or two. If that occurs, we will have a reactionary Court like the one we were stuck with from 1857-1936 for maybe fifty years! Under those circumstances, liberals and progressives would once again see quite clearly that an institution committed to enforcing the values inherent in an ancient document is much more likely over time to maintain the status quo and prevent much needed change than force social progress. If Clinton or Sanders prevails, we might get a more progressive Court, assuming the Senate goes along, but as the resistance to Brown and Roe demonstrated, when the Court does act to force social progress, which is rare, it is much less effective than when it tries to prevent social change.

Of course, it is impossible to prove a negative, and it is possible that the country would have been worse off over time with a much more deferential style of judicial review (I do not advocate the total abandonment of the doctrine). But given the Court’s history and its consistent and effective siding with the rich and the powerful over the poor and the downtrodden, as a progressive, I like my odds with a much weaker Court.

A prolonged political stalemate over Scalia’s seat could present the Court’s political nature quite starkly to the American people. The more the people see the Court as a political organ rather than a Court of law, the more the Court might have to worry about its prestige and reputation. Both Cass Sunstein and Scott Turrow, self-described liberals, have written in the last week that, if this crisis leads to a weaker Court with Justices less willing to thrust themselves into nationally contested social issues not clearly resolved by the Constitution, we would all be better off. Neither made an historical argument, but as my Salon piece shows, they are both clearly correct as a matter of history as well as policy. A strong Court with aggressive Justices is rarely good for the country or for the left. Maybe Justice Scalia’s seat should remain empty for a very long time.


Anonymous said...

At a high level of abstraction I agree with Eric because I've always believed that democracies tend towards liberalism. However, as a historically situated person I disagree. The problem is same-sex marriage. Disgruntlement with that ruling among conservatives is not going to go away and any attempt to weaken the court is going to be seen as a backhanded way to entrench that ruling. This is the major reason why I disagreed with the grand strategy of turning to the courts to create same sex marriage--it inherently constructed it on a ground made of sand--rather than winning the battle through the democratic process and grounding it in culture.

So at this point in time conservatives have nothing to lose and everything to gain by pushing for a strong, dominant court. And in the end liberals are in a rhetorically weak position to deny them it, given that they have so recently taking advantage of the court's institutional strength themselves. Same sex marriage may well turn out as a historical matter to be a case of winning a battle but losing a much larger war.

Joe said...

Same sex marriage winning in court (state and federal) was the end result of changes in society and politics (e.g., Obama winning and the Administration fighting DADT and DOMA). On a broader level, changes in marriage for quite some time made evenhandedly applying the rules warranted equal protection for same sex couples here.

It's hard to see how there could have been a principled opt out for same sex marriage here (except perhaps to slow it down a bit by use of narrower grounds to strike down the statutes in question) to avoid conservative backlash. And, if not this, they would be on something else. Such as contraceptives and so-called religious liberty or legislatively passed same sex marriage & so-called religious liberty etc.

If the courts broadly shouldn't be used -- unlike for all of our history in various respects -- to protect constitutional rights and divisions of power fine, but not seeing how we can really cut off one thing here.

Joe said...

Eight justices will continue as a whole to be "strong" with lower courts continuing to be "strong" too. So, what are we left with here? A narrow group of opinions that will split the Court such as affirmative action or something. Some of these will be opinions many won't care about (such as a patent dispute or the outer limits of the 4A) though they will be of some importance to the law. If Clinton wins, the value of that to liberals particularly is unclear to me given the fifth vote will help them.

The importance of swing justices aren't new -- see Bork. The 1930s crisis didn't quite lead to a more deferential Court as such especially to the degree they were "deferential" to state action. FDR and the Democrats had the votes to pick justices that agreed with New Deal policy. The justices showed their power though.

This is a "teachable moment" and perhaps Republican intransigence can inform though apparently "the Democrats would have done the same thing" so what the public will learn there is unclear. If they weren't aware that politics matters a lot hear (e.g., who is President really matters), not sure what more this will tell them.

Anonymous said...

"Same sex marriage winning in court (state and federal) was the end result of changes in society and politics"

When you post things like this you lose any credibility you might posses. Not only does no rational lay person think this, the liberal judges on SCOTUS don't think it either. It was Justice Ginsburg who said she thought the country was ready for an "adjustment". So the idea the court was following the public isn't merely silly as a proposition, it is factually incorrect.

I know, I know, I am trying to draw a distinction between truth and lies and that is something I am learning that a good little liberal doesn't do. Then people run around sreaming about where Trump is getting his mojo from. Well, he's getting it from the fact that liberals have started believing their own propaganda, and then get mad when other people don't believe it too.

Paul Scott said...

"When you post things like this you lose any credibility you might posses. Not only does no rational lay person think this, the liberal judges on SCOTUS don't think it either."

Really? "no rational lay person?"

The idea that the courts follow, rather than lead is a reasonably well accepted idea.

Here is a whole book on it for rational lay people:

On SSM, it was actually pretty obvious. We went from sodomy is criminal to constitutional SSM in 30 years and the court followed public opinion with baby steps all along. With most gay rights issues, SSM included, it pretty much took the role of forcing the slave states to conform with the majority.

Greg said...

James Longfellow,

Since you make the claim of factually incorrect, let's add some facts to the mix.

According to Gallup the percentage of Americans who believe same-sex marriage should be legal passed above 50% in 2013. That alone suggests a change in society. 20 years ago, even most liberals would have rejected the idea of same-sex marriage; in 2009, the Vermont and New Hampshire legislatures enacted bills allowing same-sex marriage. That represents a change in politics.


It's possible that Gallup and other respected polling organizations are selling lies, but if so, I don't think there's anyone who can be considered trustworthy, and all anyone is left with is local anecdotal evidence and guessing.

Society and politics has changed in the last 20 years to favor same-sex marriage. This is fact to the extent that facts about such things are provable on a nationwide scale.

It is of course impossible to prove that this change in society and politics informed the SCOTUS's decision, but it is hard to believe that the liberal justices' own support sprang from thin air despite a hostile populace, rather than being gained through these same societal and political changes. Indeed, the "ready" in Justice Ginsburg's comment likely refers to these changes.

Greg said...

The unfortunate answer to why everyone wants partisan judges and a strong, activist court with justices from the "correct" party is, put simply:

Because Roe.

This is true whether the person is liberal or conservative.

Kevano said...

Oh no!