One Case at a Time: Judicial Minimalism on the Supreme Court [Paperback]

Cass R. Sunstein (Author)

Book Description

ISBN-10: 0674005791 | ISBN-13: 978-0674005792 | Publication Date: April 16, 2001

Abortion, affirmative action, the "right to die," pornography and free speech, homosexuality and sex discrimination: as eagerly as the Supreme Court's rulings on these hot issues are awaited and as intently as they're studied, they never seem to settle anything once and for all. But something is settled in the process--in the incremental approach--as Cass Sunstein shows us in this instructive book.

One of America's preeminent constitutional scholars, Sunstein mounts a defense of the most striking characteristic of modern constitutional law: the inclination to decide one case at a time. Examining various controversies, he shows how--and why--the Court has avoided broad rulings on issues from the legitimacy of affirmative action to the "right to die," and in doing so has fostered rather than foreclosed public debate on these difficult topics. He offers an original perspective on the right of free speech and the many novel questions raised by Congress's efforts to regulate violent and sexual materials on new media such as the Internet and cable television. And on the relationship between the Constitution and homosexuality and sex discrimination, he reveals how the Court has tried to ensure against second-class citizenship--and the public expression of contempt for anyone--while leaving a degree of flexibility to the political process.

One Case at a Time also lays out, and celebrates, the remarkable constellation of rights--involving both liberty and equality--that now commands a consensus in American law. An authoritative guide to the Supreme Court, the book offers a new understanding of the American Constitution, and of the relationship between democracy and constitutionalism, and between rights and self-government.

Editorial Reviews

From Publishers Weekly

Digging much deeper than the limiting liberal/conservative dichotomy through which the Supreme Court is habitually viewed, constitutional scholar Sunstein (The Cost of Rights, with Stephen Holmes, Forecasts, Jan. 11) gives readers a thoughtful analysis and defense of the Court's institutional caution. He uses the term "minimalism" to define the Court's preference for deciding individual cases while leaving "fundamental issues undecided." According to Sunstein, judicial minimalism is desirable both on prudential grounds (because the Court lacks the long-range vision to anticipate the consequences of many decisions) and on political grounds (because the Court leaves fundamental issues for the democratic process to resolve). On the former point, Sunstein offers some compelling insights into the limits of lawyers' and judges' predictive abilities. On the latter point, he will not convince all readers to share his confidence in democratic procedures: some will argue that resolving questions of constitutional rights (e.g., abortion, privacy, the gradations of free speech) exclusively through majoritarian processes may undermine the protection of such rights. Sunstein views sees this danger as one of the many tensions of our constitutional system (along with those between liberty and equality, negative and positive rights). An able writer who makes complex judicial issues accessible, Sunstein offers provocative and informative reading for general readers seriously interested in the life and work of the Supreme Court.
Copyright 1999 Reed Business Information, Inc. --This text refers to an out of print or unavailable edition of this title.

Review

With his new book, Sunstein joins a distinguished line of liberal constitutional theorists who have defended the democratic value of judicial modesty...[One Case at a Time is] uniquely well-suited to an age that has lost its constitutional faith...No other scholar has captured the temper of the current majority as neatly as Sunstein, nor has anyone else attempted to provide a theoretical justification for what other observers took to be ad-hockery or improvisation. For these reasons, Sunstein's book deserves close attention.
--Jeffrey Rosen (New Republic )

Sunstein is among this country's most respected legal scholars [and] One Case at a Time reflects [his] mastery of Supreme Court law, of constitutional theory and of political science...One Case at a Time presents a fascinating argument: that there is a hidden majority of [judicial minimalist] Justices, that it is right in what it is doing and that it is adjudicating in a way that moves beyond the recent ideological stalemate about the Supreme Court's role...[Sunstein's] book demonstrates what a shame it is that the Clinton White House hasn't picked him to serve as a Federal judge. The Reagan and Bush Administrations put accomplished legal theorists on the bench to turn their conservative vision into legal reality. But the Clinton team has failed to follow the Reagan-Bush lead... One Case at a Time makes that reluctance look like a significant lost opportunity. Respectful of the political branches, mindful of the role of the Supreme Court in the whole of American government, this admirable book makes a judicious case for a philosophy of judging as a humble, difficult, essential art. The book also demonstrates that Sunstein would practice that art well.
--Lincoln Caplan (New York Times Book Review )

In a lucid examination of specific cases, Mr. Sunstein demonstrates how [judicial minimalism] should be done and achieves what has so far been elusive, a genuine theory of judicial minimalism, which many judges strive for but often have difficulty describing or justifying. (The Economist )

With One Case at a Time, Cass Sunstein may well become known as the Nathan Detroit of constitutional law. For this is a shrewd and clever book.
--Gary McDowell (Washington Times )

In One Case at a Time, Sunstein describes the current Supreme Court's 'judicial minimalism'--deciding cases as narrowly as possible, without widely applicable rules. This position, he urges, can support deliberative democracy, particularly if the issues involved are complex and no citizen consensus has emerged. Sunstein outlines his arguments and applies it in analyzing recent decisions on 'affirmative action, discrimination on the basis of sex and sexual orientation, the right to die, and new issues of free speech raised by...communications technologies.' He then addresses alternatives to minimalism, mainly Justice Scalia's 'democratic formalism' and the complaint that minimalist decisions lack theoretical depth as well as breadth, concluding by summarizing his view of the place of judicial minimalism in a democracy.
--Mary Carroll (Booklist )

Labeling and 'bean counting' of the Supreme Court and its Justices are frequently all that Americans get by way of description of the activities of the highest court in our system. Even the legal profession finds it is easier to label than to analyze. That is why Cass Sunstein's book is just what the country needs--an understandable analysis of how this Supreme Court goes about its decision making. If it seems to make the 'conservatives' the 'activists' and the 'liberals' the 'strict constructionists,' that only proves that those labels are not very useful and more often than not reflect the eye of the beholder. Nor can Professor Sunstein's use of the word minimalism be dismissed as just another pretty label. The term aptly describes what has been the very touchstone of both the common law and constitutional theory in America for a long, long time. The book represents Sunstein at his best.
--Abner J. Mikva, former Chief Judge, U.S. Court of Appeals for the D.C. Circuit

Against the tide of those who lament the lost Warren Court or hunger for its conservative successor, Cass Sunstein argues that the current Supreme Court correctly avoids grand constitutional theories in favor of narrow decision making that leaves most matters of distribution and social justice to be decided by democratic majorities. Written with great lucidity, verve, and mastery of contemporary currents in political theory and constitutional law, this is the first judicial philosophy of and for the post-Bork appointees to the Court.
--Kathleen M. Sullivan, Stanford Law School

An original and deftly executed contribution to the voluminous literature on constitutional interpretation. Sunstein is utterly at home with the details of constitutional opinions and with recent work in political theory. Scrutinizing the work of the current Supreme Court in various legal domains, he urges the democratic merits of its caution. This is a book not just for professors and lawyers, but for citizens.
--Don Herzog, University of Michigan Law School

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Product Details

• Paperback: 304 pages
• Publisher: Harvard University Press (April 16, 2001)
• Language: English
• ISBN-10: 0674005791
• ISBN-13: 978-0674005792
• Product Dimensions: 11.7 x 5.8 x 0.9 inches
• Shipping Weight: 14.4 ounces (View shipping rates and policies)
• Average Customer Review: 3.5 out of 5 stars  See all reviews (4 customer reviews)
• Amazon Best Sellers Rank: #938,830 in Books (See Top 100 in Books)

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20 of 25 people found the following review helpful:

5.0 out of 5 stars Succinct analysis of how the Supreme Court decides cases, September 26, 1999

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This review is from: One Case at a Time: Judicial Minimalism on the Supreme Court (Hardcover)

This is an essential text for anyone interested in legal reasoning and legal process. I would go so far as to say it will be on the same bookshelf as Oliver Wendall Holmes and other great jurisprudential commentators. It should also be required reading for every law student, and their professors as well. Sunstein, a law professor at the University of Chicago Law School, gives clear, diagramatic analyses of the principles upon which the Supreme Court (and other courts and judges) base their decisions.

That having been said, this is neither a quick nor superficial read. It assumes the reader's familiarity with legal process and decisionmaking, and of the salient issues before the courts. Nevertheless, the overall result is deeply satisfying as a method of analysis. Anyone interested in law should buy the book, and read it, not once but several times.

8 of 9 people found the following review helpful:

4.0 out of 5 stars An intriguing examination of how the Supreme Court operates, December 30, 2004

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R. Price "caesar_42" (Liverpool, New York) - See all my reviews
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This review is from: One Case at a Time: Judicial Minimalism on the Supreme Court (Paperback)

It is a common piece of political rhetoric that courts run this country; you see this most commonly from the right. Sunstein presents an alternative that actually examines how the Supreme Court operates across broad categories. Sunstein develops the theory of minimalism. Under this theory, Sunstein argues that courts should proceed cautiously in deciding cases that involve complex and difficult areas of constitutional law. Courts have institutional limitations that make it difficult for them to provide hard rules that will decide every case in the future. One recurring example is Roe v. Wade where the Court attempted to lay out a broad rule. The experience with this broad rule demonstrated that the Court's attempt was a bad idea in that it had insufficient knowledge to adequately develop rules to deal with all contingencies. That is why the Court itself eventually abandoned Roe's broad rule in Casey. While Sunstein warns against broad and far-reaching rules, he does not say that all such rules are invalid. Instead he argues that such rules should be limited for those few cases and areas that a consensus exists and the risk of error is minimal; an example of which is Brown where the Court had a series of decisions lending support to its ultimate resolution of segregation. After describing minimalism, Sunstein analyzes the Court's recent decisions regarding assisted suicide, affirmative action, sex and sexual orientation, and the first amendment dealing with cable and internet issues. In each of these areas the Court has proceeded in a minimalist fashion, which Sunstein describes and defends.

Contrary to another reviewer's assertion, Sunstein does not use his theory to justify "liberal" values while attacking "conservative" justices. In fact he notes that Rehnquist, hardly a liberal, often operates in a minimalist fashion. His critique of Scalia has nothing to do with conservatism and is instead aimed at the fact that Scalia is the foremost maximalist. He argues for broad rules meant to provide certainty. Sunstein analyzes Scalia's constitutional theory solely in terms of the limitation of maximalism, and does not in any way attack Scalia for his conservatism.

The best thing about minimalism is that it seeks to allow democratic deliberation to assist in constitutional development. In deciding cases in a minimalist fashion, the Court allows democratic assemblies to work out new approaches to difficult areas. In fact, one benefit of federalism has long been understood to be promoting experimentation. Democratic assemblies have the fact gathering ability and deliberative processes that can best develop rules to deal with future problems.

25 of 61 people found the following review helpful:

1.0 out of 5 stars Sad Use of a Brilliant Mind, February 8, 2000

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T. Berner (New York, New York) - See all my reviews
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This review is from: One Case at a Time: Judicial Minimalism on the Supreme Court (Hardcover)

Liberalism eats its intellectuals, cannibalizing their principles for the sake of political expediency.

Professor Sunstein is a case in point. Last year, to defend President Clinton against impeachment, he argued that a President can't be impeached for any crime not related to his office. When pressed, he allowed that it would be a borderline case if the President murdered someone, but no lesser crime would merit impeachment. Professor Sunstein is not a stupid man, but this is a stupid argument. Since, like most legal experts, Mr. Sunstein also believes that a President cannot be prosecuted, Mr. Sunstein is arguing that if a President habitually raped women or blew up abortion clinics and bragged about his exploits in his State of the Union Address, the country would be powerless to take any action against him. I doubt that a man of Mr. Sunstein's intelligence believed that even as he spoke it, but nevertheless, he lent his prestige to a shabby argument for the political demands of the moment.

There is something of the same thing going on in this book. This time, there is nothing objectionable in his thesis. Courts should not strip issues away from the democratic process. Indeed, if it weren't for Roe v. Wade (which Sunstein properly condemns), state legislatures would have legalized abortion anyway, but the pro-life forces would not be picketing clinics, let alone blowing them up. Vox populi, vox dei has a powerful ability to make people to accept what they oppose. Courts lack that power.

Where Sunstein bows to political pressure is in his choice of examples of judicial overreach. For every example of Warren Court "maximalism" which he rightly condemns, he throws in a right-wing example, Justices Scalia and Thomas being particular targets. But he really is comparing apples and oranges. Justice Scalia's position on punitive damages, for instance, which has a long tradition in America despite current abuses, is just not on a par with the Warren Court's Baker v. Carr, which overturned 200 years of electoral practice (and, if the court had been logically consistent, would have overturned the method of electing U.S. Senators, thus making the Constitution unconstitutional). Yet Sunstein equates the two. If conservative judges were really the judicial activists Sunstein pretends them to be, they would be arguing that the fetus is a human being protected by the Constitution. They do not do that, arguing at their most extreme that it is a matter for the legislatures to decide.

Because liberalism is aimless at the moment, it behooves liberals to applaud the narrow focus of the Court. It also behooves them to use a tu quoque argument to attack the opposition. Sunstein fills the bill.

This book is a highly original and highly principled work. Unfortunately, the parts that are original are not principled and the parts that principled are not original.