Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America [Hardcover]

Cass R. Sunstein (Author)

Book Description

Publication Date: September 6, 2005 | ISBN-10: 0465083269 | ISBN-13: 978-0465083268 | Edition: annotated edition

Most people think that the Supreme Court has a rough balance between left and right. This is a myth; in fact the justices once considered right-wing have now taken the mantle of the Court's moderates, and the liberal element has all but disappeared. Most people also think that judicial activism is solely a liberal movement. This is also a myth; since William Rehnquist was confirmed as Chief Justice in 1986, the Supreme Court has engaged in an unprecedented record of judicial activism. These two factors are feeding a movement to restore what many conservatives call "The Constitution in Exile," by which they mean the Constitution as it existed before the Roosevelt administration. Radicals in Robes explains what the restoration of this constitutional vision would mean. It would mean the end of the FCC, the SEC, the EPA, and every other federal agency that enacts regulations that have the force of law. It would mean that the clause of the First Amendment that says that Congress may make no law "respecting an establishment of religion" would be turned on its head. Marriage laws and many other familiar areas of modern life are all in the sights of this conservative movement. Radicals in Robes takes judicial philosophy out of the law schools and shows what it means when it intersects partisan politics. It pulls away the veil of rhetoric from a dangerous and radical right-wing movement and issues a strong and passionate warning about what conservatives really intend. One of the most respected legal theorists in the country, Cass R. Sunstein here issues a warning of compelling concern to us all.

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: 9.4 x 6.5 x 1 inches
• Shipping Weight: 10.6 ounces
• Average Customer Review: 3.6 out of 5 stars  See all reviews (17 customer reviews)
• Amazon Best Sellers Rank: #1,640,328 in Books (See Top 100 in Books)

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40 of 53 people found the following review helpful

5.0 out of 5 stars A timely book about the struggle to understand the constitution September 12, 2005

By Robert Moore HALL OF FAMETOP 500 REVIEWERVINE™ VOICE

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. He instead defines four methods of judicial interpretation: 1) Perfectionism, which attempts to make the constitution as good as it can be, 2) Majoritarianism, which attempts to reduce the role of the court and overwhelmingly favor legislation by elected officials, 3) Minimalism, which abjures making decisions about large principles and issues, and instead seeks to make small incremental changes in the constitution by making very narrow judicial decisions, and 4) Fundamentalism, which holds that the constitution must be interpreted according to the intent of the ratifiers (not the framers) of the constitution. Sunstein points out that while Perfectionism has played a significant role in the past (indeed, the greatest American Justice ever, John Marshall, could be described as a Perfectionist, while many of the major decisions, such as Brown v. Board of Education, can be described as Perfectionistic in nature), no one currently on the supreme court can be so labeled. Likewise, though one of the most famous of all Supreme Court justices, Oliver Wendell Holmes Jr., could be described as a Majoritarian, no one today either on the Supreme Court or the Appeals courts holds that position. Most justices, according to Sunstein, take a Minimalist position, which is the approach he defends. But he believes that the stability and integrity of the American legal system is being threatened by a growing number of Fundamentalist judges, and the book is largely a defense of Minimalism and a critique of Fundamentalism.

For the most part Sunstein restricts himself to purely legal considerations, though he hints at a truth that most journalists would point out rather more strongly than he does: that Fundamentalism is primarily a way of getting a political agenda instituted by circumventing the electoral process. He points out that it is distressing to see how constantly Fundamentalists, who allegedly argue for a nonpartisan reading of the Constitution, actually hew rather closely to the most radical ideas of the far right of the Republican party. Though he acknowledges this to be the case, for the most part he concentrates on more purely considerations. For instance, the Fundamentalists insist that every decision must be based on the text of the Constitution as understood by the ratifiers, which means that decisions much be based on the best possible historical understanding of the words of the constitution. The bulk of the book consists of Sunstein looking at a number of the most pressing constitutional issues-e.g., the right to privacy, the right to marry, race and affirmative action, national security, the separation of powers, the establishment clause, free speech, and second amendment issues-and analyzing what the effect of adjudicating them from a fundamentalist position would be. He finds that Fundamentalism is often inconsistent with the best historical understanding-in fact, often formulating positions in direct opposition to the historical record, such as in free speech issues or affirmative action-and almost always undesirable or imprudent.

One example of the historical side of his argument will suffice. Fundamentalists insist that the Second Amendment establishes the right for individuals to own guns. But an examination of the history reveals much that contradicts this. For instance, it is the lone amendment that is directed at providing the individual states a right against the federal government, namely, the right to form state militias. Moreover, the only major Supreme Court decision ever undertaken (United States v. Miller) affirmed the right of Congress to limit the kinds of weapons that could be sold and owned. Perhaps most telling of all, the Supreme Court ruled in 1886 that the Second Amendment was the only one of the Bill of Rights that was not incorporated in the Fourteenth Amendment. In other words, the Court has always treated the amendment as treating the relationship between the states and the federal, and did not involve individuals at all. (Obviously, gun ownership can still easily be legal: there is simply no clear constitutional proof that it is a right guaranteed by the Bill of Rights as the NRA so vigorously asserts.) But in looking at this issue, Fundamentalists completely ignore the historical record which they state is of such crucial importance.

Much of Sunstein's argument hinges on the potential chaos that could result if Fundamentalists had their understanding of the constitution become normative. In essence, he is arguing that Fundamentalism could produce results that are undesirable, imprudent, and destructive. Do we really want a nation in which the federal government could discriminate on the basis of race or gender? Do we want any restrictions on campaign financing to be made illegal? Do we want the right to privacy eliminated? Do we want it possible for states to establish an official state religion (e.g., Mormonism in Utah, probably the only state where there is a single dominant church)? Do we want advertisements to be completely unregulated? Do we want the Clean Water Act to be stricken down? All of these things could take place on Fundamentalist grounds. Obviously, very, very few Americans would like to see much or any of this take place. In other words, Fundamentalism could lead to a nation that few would desire. And surely the point of a constitution is providing a stable, fair government that promotes the general welfare. On this test, fundamentalism would obviously fail.

My lone criticism of the book lies with a fact that Sunstein only lightly touches upon. This concerns the likelihood that we could all come up with an agreed upon historical understanding of the phrases of the constitution. If one reads a great deal of early history of the United States, one of the first things that one is struck by is how the first generation argued about what was and was not permitted by the constitution. Remember, these were debates among the framers and ratifiers of the constitution. Washington, Hamilton, Adams, and Madison (I leave out Jefferson because he was neither a framer nor a ratifier) had sharp disagreements about what the constitution did or did not allow. If these men had no ready agreement about the Constitution, how could we possibly today come to any agreement? I think Sunstein could and should have made much more of this. Even if Fundamentalism were desirable, it would be impossible. I heartily agree with Sunstein on many other points. He asks why we should desire to set in granite the understanding of men from a couple of centuries ago who had very, very different beliefs about women, race, economics (indeed, most of the founders could be better understood as mercantilists than capitalists), religion, and voting (most felt only property owners should be able to vote) than we do. Sunstein doesn't make this point, but clearly tying ourselves stringently to a late 18th century understanding of the constitution would be to tie ourselves to something that would grow increasingly irrelevant. We have a great constitution, but it must provide the framework for our changing understanding of privacy, race, and gender, not dictate the primacy of their outmoded views.

I recommend this in the strongest possible terms, especially now when we will see the Senate closely examine the judicial philosophy of two new members of the Supreme Court.

Addendum: As I write this on 9/13/05 I am listening to the confirmation hearings of John Roberts to become the new chief justice of the United States Supreme Court. Interestingly, Sen. Orrin Hatch explicitly mentioned Sunstein's book and his distinction between the four types of judicial philosophy, asking Roberts which of the four would best apply towards him. Roberts declined to subscribe to any label, though all of his answers so far and his insistence on being a "modest" judge would seem to lean heavily towards Sunstein's "minimalist" label. One can hope that this is correct, though one is reminded that Clarence Thomas, the most activist justice in memory, came across as a "modest" judge in his hearings just over a decade ago.

20 of 27 people found the following review helpful

2.0 out of 5 stars Not the best place to look for a balanced view September 27, 2006

By taxdude

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). Sunstein states that we should accept the Constitution as it is currently, but that one should take "minimalist" approaches in providing any further changes. The critics argue that Sunstein is simply happy with the current Constitution, and ergo espouses the "minimalist" view, to which he responds:

"Suppose perfectionsits really can show that their approach produced a number of decisions that are desirable and that no other approach could have generated. The principled minimalist responds: So what? If the Court had not acted, the democratic process might have done so instead."

Yet, in hypocritical fashion, Sunstein launches into a tirade against originalism, arguing that that approach reaches undesirable results. As an originalist, I'd argue: "If the Court had not acted, the democratic process might have done so instead." Sunstein does not allow originalists this defense, and it is shocking that he would nonetheless use that argument himself.

This is a better book than you will find by the likes of Ann Coulter or Michael Moore. It is not a bad book, but just very, very disappointing to those who expected more from the author. Given Sunstein's unbelievably brilliant law review articles, I'm shocked and disappointed by his patently biased discourse in this book. I refuse to believe that he, in good faith, actually believes the arguments he makes (he argues, for example, that originalism is tantamount to the "rule of the dead"; yet, Brown vs. Board of Education was written by judges who are now dead-- would he suggest that we ignore that decision because those judges are dead? Surely a man as smart as he understands that we respect legal texts because of the process they went through to attain the status as binding law, and not out of reverence for the dead).

I could not help but feel that this is simply a thinly veiled attack on conservatives; Sunstein had an axe to grind with conservative legal scholars and probably thought that writing a book for a wide audience defaming them and misrepresenting their views would allow him to blow off some steam. But although I do not mind people attacking conservatives-- i'm a minority/atheist/social liberal who also cannot stand "jesus freaks" -- when an author as accomplished as Sunstein parades a political attack as an academic work, I cannot help but be disappointed. I give this book 2 stars, and not 1 star, because people who feel insecure in their originalist views should read this book to see that many of the criticisms of originalism are quite specious. Sunstein takes his best shot at originalism and fails badly, and an originalist should feel good after finding out that this is the best that the leading "non-originalist" can do.

I do hope that Sunstein writes again on the topic-- I would be very interested in reading what he would say about a subject like this if he made a conscious effort to remove his political views.

29 of 40 people found the following review helpful

4.0 out of 5 stars Actually not a bad book September 12, 2005

By A. E Rothert VINE™ VOICE

Format:Hardcover|Amazon Verified Purchase

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. Certainly, minimalism appears sane when the only other choice is fundamentalism; however, these are not the only two choices.

I subtracted a star because the book is not completely trustworthy. Page 93's reference to "Justice William Kennedy" caused me to re-read many passages carefully to make certain I was properly understanding what Sunstein was attempting to convey and that he had not erroneously left out an important word or two. Other minor errors leave the reader to wonder if what is printed is exactly what is intended. In addition, the book as a whole, but particulary the introduction, suffers from abundant over-use of "of course" and "actually." The introduction reads as if it was dictated but never proof read in this respect.