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One Case at a Time: Judicial Minimalism on the Supreme Court Hardcover – March 10, 1999

ISBN-13: 978-0674637900 ISBN-10: 0674637909
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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

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)
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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: 3.5 out of 5 stars  See all reviews (4 customer reviews)
  • Amazon Best Sellers Rank: #1,802,515 in Books (See Top 100 in Books)

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Most Helpful Customer Reviews

20 of 25 people found the following review helpful By A Customer on September 26, 1999
Format: Hardcover Verified Purchase
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.
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8 of 9 people found the following review helpful By R. Price on December 30, 2004
Format: 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.
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26 of 64 people found the following review helpful By T. Berner on February 8, 2000
Format: 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.
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5 of 22 people found the following review helpful By A Customer on July 4, 2000
Format: Hardcover
Review titled "Sad...Brilliant Mind" is misguided and his criticism is misplaced. His erudiction is impressive (lots of foreign, erudite words to be sure) but his analysis confuses several critical positions. Read "One Case at a Time" and you will gain a better idea of how fundamentally flawed our democratic process actually is and the role of the judiciary as a buffer against a tyranny by the majority. To understand the Supreme Court since 1954, one must see the historical circumstances of that era.
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