One Case at a Time: Judicial Minimalism on the Supreme Court (Hardcover)

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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.

Review

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

For Court watchers and people concerned about high politics, One Case at a Time presents a fascinating argument... -- The New York Times Book Review, Lincoln Caplan

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. -- Booklist, March 15, 1999

With One Case at a Time, Cass Sunstein may well become known as the Nathan Detroit of constitutional law...this is a shrewd and clever book. -- Washington Times, April 11, 1999

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Product Details

• Hardcover: 304 pages
• Publisher: Harvard University Press (March 10, 1999)
• Language: English
• ISBN-10: 0674637909
• ISBN-13: 978-0674637900
• Product Dimensions: 9.6 x 6.4 x 1 inches
• Shipping Weight: 1.3 pounds
• Average Customer Review: 3.4 out of 5 stars  See all reviews (5 customer reviews)
• Amazon.com Sales Rank: #1,191,973 in Books (See Bestsellers in Books)

Customer Reviews

Most Helpful Customer Reviews

20 of 24 people found the following review helpful:

5.0 out of 5 stars Succinct analysis of how the Supreme Court decides cases, September 27, 1999

By A Customer

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

By	R. Price "caesar_42" (Liverpool, New York) - See all my reviews (REAL NAME)

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.

2 of 3 people found the following review helpful:

3.0 out of 5 stars Best Described as a Law Review Article Retaining Fluid, November 11, 2005

By	Scott D. Scheule "Scott Scheule" (Arlington, VA) - See all my reviews (REAL NAME)

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

The book begins with the presentation of an interesting thesis: courts should act minimally when deciding cases. The author aptly examines this proposition of minimalism, breaking it into component dimensions of deep vs. shallow and broad vs. narrow. Minimalism is attractive because it allows for democratic deliberation, is an acknowledgement of the limited ability of the courts, both to predict the future and to acquire currently dispersed information, and because it promotes agreement. Sunstein not only asserts minimalism as a normative ideal, but also as a description of the current Supreme Court.

The second section is dedicated to a series of case studies, designed at once to show that the Supreme Court has been acting minimally, and furthermore, that it was correct for it to act in that fashion. However, Sunstein, having failed to crystallize minimalism into any thing concrete enough to be subject to falsification, simply rhapsodizes on the lack of court's information, and the many factual possibilites that would prove wide rulings unattractive.

Indeed, there is a fundamental ambiguity here: the author insists that minimalism is a relativist concept, but simultaneously, that it can be absolute as well (the latter claim is not explicitly stated, but the implication is clear enough--without an absolute standard of minimalism, Sunstein could not describe the Rehnquist Court as minimalist). The rub of it is if the former contention is true, then Sunstein's claim about the Rehnquist Court is fatally uninteresting. If the latter is true, then it depends on a definition of minimalism Sunsten never offers, and is at any rate, most likely false.

The third section of a book is an attack on the apostles of the opposition: width (Antonin Scalia) and depth (Ronald Dworkin). Sunstein's attack on Scalia's textualism is a fierce representation of the classic rule to act utilitarianism collapse, coupled with a critique of originalism. Dworkin's depth is respectfully dismissed as--at times--inconvenient. Attack as he does, however, he has offered nothing in its stead. His own philosophy is so run through with caveats that it is unclear what its enactment would look like, nor whether it is as attractive as he claims.

Indeed minimalism as a rule, quite appropriately, simply collapses to act minimalism, which is simple pragmatism, which Sunstein only vaguely defends. True enough, judges should exercise the best of judgment, but most people already had a feeling that that was the case before "One Case at a Time."

Make no mistake, Professor Sunstein's analysis of cases is lively and insightful, and his statements are often profound. But every insightful point is paired with a correspondingly strong counterpoint, and after 200 and some pages one finds every statement precisely cancelled out, leaving the reader with no real idea of what Sunstein is advocating, and the underlying suspicion that he's too timid to resolutely defend his position, whatever it may be.

Reading the book is like eating Chinese food.