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

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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.

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.

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.

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.