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03/08/2016

Eric Segall on the Benefits of an Extended Surpeme Court Vacancy
Michael Ramsey

At Dorf on Law, Eric Segall: Maybe Scalia's Seat Should Stay Empty for a While (and on a similar note, at Salon, This is not a court of law: Why GOP obstruction over Scalia seat might open everyone’s eyes to a politicized Supreme Court).  From the former:

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.

And in conclusion:

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.

From my perspective, I think there's a lot worth thinking about in this position.  With eight Justices and the possibility of a 4-4 stalemate, the result is that the Court needs a better-than-60% supermajority (5 out of 8) to do anything.  Maybe that's not an unfortunate check on an institution that has been somewhat unchecked in modern times.

Professor Segall goes on to argue that "a weaker Court generally favors progressives and the left much more than conservatives and the right."  I'm doubtful this is true.  Perhaps it depends how much you value gay rights and abortion versus corporate speech and gun rights.  My sense, though, is that it is closer to even, and as a result the weaker Court is not a win for either side but rather a compromise in which each side gives up the ability to get the social change it wants from the Court.

On a similar note, Professor Segall has this post: The Myth of Neutral Supreme Court Justices.  While again I generally agree with the basic idea, he makes some claims about Justice Scalia that I think call for some response.  He writes: 

Justice Scalia, quite obviously, imposed his own personal preferences on constitutional law for over a quarter of century detached from the rule of law ...

Of course, Justice Scalia is no different from all the other Justices who have ever served on the Supreme Court in terms of how their personal preferences affected their actual votes (although Scalia was different in terms of the hypocritical indignity he expressed at others for engaging in the same conduct in which he engaged).

As I've written before, I would not contend that Scalia's personal political preferences never influenced his thinking.  We are all human, even him.  As Mike Rappaport has discussed, there were areas of the law in which he did not fully explain how his outcomes aligned with originalism (affirmative action, mentioned by Professor Segall, is an example).  And in many other areas, Scalia was fortunate that his judicial philosophy tended to align with his political orientation, because the original design of the Constitution was, he thought, in general a sound and enlightened one.  

Nonetheless, Professor Segall's categorical assessment seems misplaced.  In many decisions Scalia's outcome did not align with his likely political preference, and can be readily explained only by his commitments to textualism and originalism.  For two examples, consider his support for criminal defendants and unattractive First Amendment plaintiffs.  As to the former, he repeatedly favored criminal defendants in (for example) confrontation clause cases -- aligning with the liberal Justices over the votes of conservatives.  Why? Surely not because he had sympathy for criminal defendants (see multiple other decisions, where he showed them none).  Or think of it another way: suppose the confrontation clause had a (textual) reasonableness exception, or that the confrontation clause did not exist at all and the confrontation right had been invented by the Warren Court as an ahistorical attribute of due process.  Would Scalia nonetheless have been an absolutist defender of the confrontation right?  I think not.

Similarly on the First Amendment.  His most famous First Amendment vote, perhaps, was to invalidate bans on flag burning in political protests.  Was this because he liked the idea of burning the U.S. flag?  That seems hard to imagine.  Rather, his reading of the Amendment (rightly or wrongly) led him to the conclusion that it imposed an almost-categorical ban on laws restricting political speech.  Suppose that in 1790 the First Congress had passed a law criminalizing politically inspired flag-burning and no one at the time had raised a constitutional objection.  Would that have changed Scalia's vote?  I think it very likely would have (compare, for example, his view on the legislative prayer, which does have such a history).  Yet if he had been simply voting his political preference, a different history should not have mattered to him.

Again, one can argue that there are some areas where Scalia's outcomes seem more driven by his political preferences than his commitment to originalism.  But I think it unlikely one can successfully argue this was invariably the result.  In many cases, his political preferences coincided with his judicial philosophy.  And in many other cases, he reached results that are hard to explain other than on the basis of his commitment to textualism, originalism and the rule of law.