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Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America annotated edition Edition

3.7 out of 5 stars 18 customer reviews
ISBN-13: 978-0465083268
ISBN-10: 0465083269
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Editorial Reviews

Amazon.com Review

According to legal scholar Cass Sunstein, it is not enough to label judges as "liberal" or "conservative" or any other ideological stripe; one must also take into account their approach to constitutional interpretation. In Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, he outlines four approaches that have long dominated constitutional debate--perfectionism, majoritarianism, minimalism, and fundamentalism--and argues for minimalism and against fundamentalism (perfectionism and majoritarianism are given less attention since they have largely fallen out of favor in recent decades). Minimalists believe in narrow, incremental decisions rather than broad rulings. They respect precedent, recognize the limited role of the judiciary, and "seek outcomes on which people with varying views can agree." Fundamentalists believe the Constitution must be interpreted according to "original understanding," or precisely what was meant at the time of ratification. "In the abstract, fundamentalism appears both principled and neutral. But too much of the time, fundamentalists offer an unmistakably partisan vision of the Constitution," he asserts. Though he acknowledges that fundamentalism can sometimes be reasonable, the risks of abuse are too great, leading him to conclude that the approach is "destructive and pernicious" because it leads to less freedom for Americans. In practice, for instance, it could ban the sale of contraceptives, invalidate most environmental regulations, allow discrimination on the basis of race and sex, allow states to establish official churches, and overturn even modest gun control laws.

Though they claim a devotion to history, Sunstein believes fundamentalists are "seeking to produce a federal judiciary that operates as an arm of the political branches." In making this point, Sunstein shows how "judicial activism" by extreme conservative judges has been on the rise since the Reagan administration, moving the Supreme Court hard to the right in the process. He discusses the implications of this shift on issues such as the right to privacy, marriage, affirmative action, national security, the separation of powers, gun control, and religion in public life, among others. In Radicals in Robes, Sunstein skillfully outlines complex constitutional issues in clear language, making this a useful and thought-provoking book for lay readers and legal experts alike. --Shawn Carkonen

From Publishers Weekly

In this timely and keen analysis of how judges interpret the Constitution today, Sunstein, a University of Chicago law professor and New Republic contributor, espouses what he calls a "minimalist" approach that respects precedent and takes only small-scale steps forward, and lashes out at the "fundamentalism" practiced by extreme conservative judges. Legal fundamentalists profess to base their interpretations on the meanings ascribed to the Constitution by the original ratifiers. But in many respects, Sunstein says, fundamentalists ignore, or misread, the history they claim to venerate. Further, he says many fundamentalist positions would undermine liberties Americans have come to value—rights that one fundamentalist judge, offering the example of the right to privacy, says were created out of whole cloth by the Supreme Court. For Sunstein, capitulation to the fundamentalists could lead to state (but not federal) establishment of religion, to the elimination of a protected right to privacy and to invalidation of most environmental regulations. We should be skeptical, the author insists, when political ideology seems to dictate judges' constitutional doctrine. This compressed book covers all the hot-button constitutional issues in 10 short, plainly written chapters. Americans monitoring the upcoming Senate deliberations over Bush's nomination of John Roberts to the Supreme Court will want to bear in mind the arguments Sunstein so trenchantly presents.
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Product Details

  • Hardcover: 304 pages
  • Publisher: Basic Books; annotated edition edition (September 6, 2005)
  • Language: English
  • ISBN-10: 0465083269
  • ISBN-13: 978-0465083268
  • Product Dimensions: 9.7 x 6.4 x 1 inches
  • Shipping Weight: 10.6 ounces
  • Average Customer Review: 3.7 out of 5 stars  See all reviews (18 customer reviews)
  • Amazon Best Sellers Rank: #442,782 in Books (See Top 100 in Books)

Customer Reviews

Top Customer Reviews

By Robert Moore HALL OF FAMETOP 500 REVIEWERVINE VOICE on September 12, 2005
Format: Hardcover
No more timely book concerning the American judicial system could have appeared at this time. As I write this review we are awaiting the confirmation of two new supreme court justices, a change that could transform the nation for decades to come, especially given the recent penchant for appointing young judges. Like many Americans, I'm extremely concerned about trends in the supreme and appeals courts of recent decades. Even many Republican legislators have grown increasingly concerned about a growing tendency of many Federalist Society justices on all levels to overturn federal legislation, in effect expanding the power of the courts and decreasing the power of our elected officials. With increasing talk of a Constitution in Exile and a willingness of very conservative judges to overturn well-established legal precedent and bipartisan legislation, this truly is a critical point in American legal history.

Cass Sunstein takes head on the predominant activist judicial philosophy in this clearly written study and tries to explain the reason why on legal grounds it is both highly suspect as an interpretative method and undesirable in its potential effects. He begins by insisting that "liberal" versus "conservative" is an extremely unhelpful distinction.
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Professor Sunstein's book provides an easy-to-understand description of the major theories of constitutional interpretation at play in the Supreme Court. Although identifying four streams of thought, he focuses on the two most predomiate on today's court, describing the two as "fundamentalism" and "minimalism."

There are two things this book does particalarly well. First, it points out the absudities that would result from truly following a fundamentalist apporach to constitutional interpretation. Second, it demonstrates that the fundamentalists currently on the bench are often "false fundamentalists," abandoning fundamentalism when the result is contrary to what those on the polical right wing desire. Sunstein shows, for instance, that a fundamentalist (or originalist, or traditionalist) reading of the 14th Amendment would favor affirmative action programs, while those justices claiming loyalty to original intent ignore this to acheive the result the Republican party requires. Indeed, it appears that fundamentalists are "perfectionists" of the right: activist judges who are result-oriented under the guise of constitutional interpretation.

This book argues for minimalism. But its defense of minimalism is not especially strong. It comes down to this : The only real choice today is between fundamentalism and minimalism and fundamentalism is awful; thus, minimalism is the way to go. While there is no doubt that fundamentalism is disastrous, not much is offered proactively in support of minimalism or to give strong reasons why majoritarionism or perfectionism should be rejected in its favor. To his credit, Sunstein is upfront that this book primarly argues in favor of minimalism as opposed to fundamentalism, but there is still a lot left out of the discussion.
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Format: Hardcover
This book's biggest failure is its assumption that its readers will share the author's own political views.

Cass Sunstein is a well-known academic, whose articles have proven extremely illuminating and helpful to many. This book, however, has failed miserably to meet the lofty standards that Sunstein's prior works set. Though his articles on the regulatory state have changed the way I think about statutory interpretation, Sunstein failed to persuade me even slightly in this book.

The author strongly criticizes "fundamentalism" (perhaps better known as "originalism"). He warns the reader that because "originalism" is aligned so closely with conservatives'/Republican's political views, that it must be the case that the originalist view suffers from bias.

The author does not anticipate that some readers, such as myself, are socially liberal, and yet find textualism and originalism appealing. His arguments thus failed to speak to me-- he tells the reader that originalism= conservatism, and yet i believe in originalism, but am socially liberal. What gives?

He then takes cheap shots on originalism, which he should know better than to make. He marches out a parade of horribles that would result if originalism were accepted. For example, he argues that school segregation may be permissible, the EPA's authority may be proscribed, etc. etc. He does not take into account many originalists' view (including my own), that if it were not for the Court's legislating from teh bench, that the political process (via Constitutional amendments) would prohibit discrimination, and expand the scope of agencies' powers.

His myopic view is all the more startling when one reads his defense of "minimalism" (Sunstein's preferred view).
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