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.