Cover image for One case at a time : judicial minimalism on the Supreme Court
One case at a time : judicial minimalism on the Supreme Court
Sunstein, Cass R.
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Publication Information:
Cambridge, Mass. : Harvard University Press, 1999.
Physical Description:
xiv, 290 pages ; 25 cm
Leaving things undecided -- Democracy-promoting minimalism -- Decisions and mistakes -- Minimalism's substance -- No right to die? -- Affirmative action casuistry -- Sex and sexual orientation -- The first amendment and new technologies -- Width? Justice Scalia's democratic formalism -- Depth? from theory to practice.
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Abortion, affirmative action, the "right to die," pornography and free speech, homosexuality and sex discrimination: as eagerly as the Supreme Court's rulings on these hot issues are awaited and as intently as they're studied, they never seem to settle anything once and for all. But something is settled in the process--in the incremental approach--as Cass Sunstein shows us in this instructive book. One of America's preeminent constitutional scholars, Sunstein mounts a defense of the most striking characteristic of modern constitutional law: the inclination to decide one case at a time. Examining various controversies, he shows how--and why--the Court has avoided broad rulings on issues from the legitimacy of affirmative action to the "right to die," and in doing so has fostered rather than foreclosed public debate on these difficult topics. He offers an original perspective on the right of free speech and the many novel questions raised by Congress's efforts to regulate violent and sexual materials on new media such as the Internet and cable television. And on the relationship between the Constitution and homosexuality and sex discrimination, he reveals how the Court has tried to ensure against second-class citizenship--and the public expression of contempt for anyone--while leaving a degree of flexibility to the political process. One Case at a Time also lays out, and celebrates, the remarkable constellation of rights--involving both liberty and equality--that now commands a consensus in American law. An authoritative guide to the Supreme Court, the book offers a new understanding of the American Constitution, and of the relationship between democracy and constitutionalism, and between rights and self-government.

Author Notes

Cass R. Sunstein is a law professor at Harvard Law School and is the most cited law professor in the United States.

(Bowker Author Biography)

Reviews 1

Publisher's Weekly Review

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. (Mar.) (c) Copyright PWxyz, LLC. All rights reserved



Preface The most remarkable constitutional case in recent years involved the "right to die." The particular question was whether the Constitution confers a right to physician-assisted suicide. The Supreme Court appeared to say that the Constitution confers no such right; at least this was how the case was widely reported. But a careful reading shows something different. A majority of five justices merely said that there is no general right to suicide, assisted or otherwise, and it left open the possibility that under special circumstances, people might have a right to physician-assisted suicide after all. In other words, the Court left the most fundamental questions undecided. Far from being odd or anomalous, this is the current Court's usual approach. In this way, the Court is part of a long historical tradition. Anglo-American courts often take small rather than large steps, bracketing the hardest and most divisive issues.     My goal in this book is to identify and to defend a distinctive form of judicial decision-making, which I call "minimalism." Judicial minimalism has both procedural and substantive components. I devote more space to the procedural components, but the substance is also important. Procedure and Substance Procedure first: A minimalist court settles the case before it, but it leaves many things undecided. It is alert to the existence of reasonable disagreement in a heterogeneous society. It knows that there is much that it does not know; it is intensely aware of its own limitations. It seeks to decide cases on narrow grounds. It avoids clear rules and final resolutions. Alert to the problem of unanticipated consequences, it sees itself as part of a system of democratic deliberation; it attempts to promote the democratic ideals of participation, deliberation, and responsiveness. It allows continued space for democratic reflection from Congress and the states. It wants to accommodate new judgments about facts and values. To the extent that it can, it seeks to provide rulings that can attract support from people with diverse theoretical commitments.     Judicial minimalism can be characterized as a form of "judicial restraint," but it is certainly not an ordinary form. Minimalist judges are entirely willing to invalidate some laws. They reject "restraint" as a general creed, because it is excessively general. Minimalists are not committed to majority rule in all contexts. Majoritarianism is itself a form of maximalism.     Nor do minimalists embrace the contemporary enthusiasm for reliance on the original meaning of the Constitution. For good minimalists, "originalism" is unacceptable precisely because it is so broad and ambitious. Originalists have a general theory and favor wide rules; minimalists are for this reason highly suspicious of originalism.     But judicial minimalism is hardly well treated as a form of judicial "activism." Minimalists are protective of their own precedents and cautious about imposing their own views on the rest of society. Certainly they disfavor broad rules that would draw a wide range of democratically enacted legislation into question. Nor is minimalism easily characterized as "liberal" or "conservative." On the contrary, minimalists attempt, to the extent that they can, to bracket debates between liberals and conservatives. They prefer to leave fundamental issues undecided. This is their most distinctive characteristic.     With respect to substance: Any minimalist will operate against an agreed-upon background. Anyone who seeks to leave things undecided is likely to accept a wide range of things, and these constitute a "core" of agreement about constitutional essentials. In American constitutional law at the turn of the century, a distinctive set of substantive ideals now forms that core. All members of the constitutional culture agree, for example, that the Constitution protects broad rights to engage in political dissent; to be free from discrimination or mistreatment because of one's religious convictions; to be protected against torture or physical abuse by the police; to be ruled by laws that have a degree of clarity, and to have access to court to ensure that the laws have been accurately applied; to be free from subordination on the basis of race and sex. Minimalism's substance can be captured in these central ideas. Constitutional debates operate with these fixed points in the background.     From these points it follows that a minimalist court is not skeptical or agnostic. On the contrary, it is committed to a set of animating ideals. One of my goals here is to elaborate, in minimalist fashion, a particular set of ideals, taken as the preconditions of a well-functioning constitutional democracy. The ideal of democracy comes with its own internal morality--the internal morality of democracy--and there is a large difference between democracy, properly understood, and whatever it is that a certain majority has chosen to do at a certain time. The most important features of democracy's internal morality are connected with the principle of political equality. This principle animates the free speech ideal; it shows why the government may not entrench itself; it shows why there is a special barrier to government efforts to interfere with political speech; and it also explains why some efforts to regulate the "speech market" may be consistent with the free speech principle. The principle of political equality also helps explain the operation of the equal protection clause. It shows why government may not impose second-class citizenship on any group--why there are no "castes" here. I connect this understanding with discrimination on the basis of race, sex, and sexual orientation, and also with the project of minimalism. A Minimalist Supreme Court Observers, including academic observers, tend to think that the Supreme Court should have some kind of "theory." But as a general rule, those involved in constitutional law tend to be cautious about theoretical claims. For this reason, much of academic work in constitutional law has been out of touch with the actual process of constitutional interpretation, especially in the last two decades. The judicial mind naturally gravitates away from abstractions and toward close encounters with particular cases. Even in constitutional law, judges tend to use abstractions only to the extent necessary to resolve a controversy.     The current Supreme Court embraces minimalism. Indeed, judicial minimalism has been the most striking feature of American law in the 1990s. The largest struggles on the Supreme Court have been over when to speak and when to remain silent, and opposing camps among the justices contest exactly that issue, with the minimalists generally prevailing. There are many examples. Return to the question of physician-assisted suicide. This issue is important in itself, but it is even more important because its resolution bears on the whole question of whether there is a general constitutional right to privacy (including abortion, sexual autonomy, parental rights, and a great deal more). In his opinion for the five-justice majority, Chief Justice William Rehnquist wrote the ambitious, emphatically nonminimalist opinion that he and Justice Scalia have been (unsuccessfully) urging on the Court in the abortion cases--an opinion that would limit the right of privacy, and indeed all fundamental rights under the due process clause, to those rights that are "deeply rooted" in our long-standing "traditions and practices." For better or worse, this idea would nearly bring to a halt the judicial protection of fundamental rights (aside from those specifically mentioned in the Bill of Rights).     Five justices signed the Rehnquist opinion, which seems like a large development that goes well beyond what was necessary to decide the particular case. But for those attuned to the Court's minimalist tendencies, the crucial aspects of the case lie elsewhere. Justice Sandra Day O'Connor wrote one of her characteristic separate opinions, suggesting that any new development was small and incremental. In her view, all the Court held was that there was no general right to commit suicide. She cautioned that thc Court had not decided whether a competent person experiencing great suffering had a constitutional right to control the circumstances of an imminent death. That issue remained to be decided on another day. And, in a revealing and in its way hilarious opening to his own separate opinion, Justice Stephen Breyer wrote, "I believe that Justice O'Connor's views, which I share, have greater legal significance than the Court's opinion suggests. I join her separate opinion, except insofar as it joins the majority."     What this means is that a majority of five justices on the Court has signaled the possible existence of a right to physician-assisted suicide in compelling circumstances--and thus a five-justice majority has rejected the whole approach in Rehnquist's opinion (for a five-justice majority). O'Connor's opinion speaks for a group of justices who are not quite clear on how to handle fundamental rights under the due process clause and who want to leave the hardest and most contested issues for continuing democratic, and judicial, debate.     This is one of a large number of examples. In dealing with free speech and new communications technologies, discrimination on the basis of sexual orientation, affirmative action, and same-sex education, the Court has spoken narrowly and left the fundamental questions undecided. Thus the right to die case signals something large about the Supreme Court as a whole, and offers a clue to understanding the Court's minimalist character. Several of the justices, most notably O'Connor (but also Justices Breyer, Ginsburg, Stevens, and Souter), are cautious about broad rulings and ambitious pronouncements. Usually, they like to decide cases on the narrowest possible grounds. Justice O'Connor's concurrences typically limit the reach of majority decisions, suggest ways of accommodating both sides, and insist to the losers that they haven't lost everything, or for all time. By contrast, other justices, most notably Justice Antonin Scalia (but also Justice Clarence Thomas and sometimes Chief Justice William Rehnquist), think that it is important for the Court to lay down clear, bright-line rules, producing stability and clarity in the law.     One of my goals in this book is to draw some general lessons from an understanding of the U.S. Supreme Court as it enters the new century. In its enthusiasm for minimalism, the Court is not exactly unique, for American constitutional law is rooted in the common law, and the common law process of judgment typically proceeds case by case, offering broad rulings only on rare occasions, when the time seems right. But the current Court is sharply distinguishable from its predecessor courts under Chief Justices Earl Warren and Warren Burger. The Warren Court in particular was enthusiastic about broad rulings, and the Court was not reluctant to accept theoretically ambitious arguments about equality and liberty. The most vivid example is the great case abolishing segregation in the United States, Brown v. Board of Education; but consider also the requirements of the emphatically nonminimalist one person-one vote decision and the mandated Miranda warnings--simply two more illustrations of a tendency to produce broad, rule-like decisions. The Burger Court was quite different--a heterogeneous Court, with a variety of shifting coalitions--but it too showed no general preference for minimalism. I attempt to capture the character of the Supreme Court in the present era and to defend its controversial way of proceeding as admirably well suited to a number of issues on which the nation is currently in moral flux. Minimalism and the Democratic Project My most important goal is to explore the connection between judicial minimalism and democratic self-government. When should a constitutional court rule broadly, and when narrowly? For what conception of democracy ought the Constitution be taken to stand? How might a court best preserve both democratic government and individual rights? How should the Court understand the constitutional ideals of liberty and equality?     In asking such questions, I attempt to show how certain minimalist steps promote rather than undermine democratic processes and catalyze rather than preempt democratic deliberation. My particular areas of concern include affirmative action, discrimination on the basis of sex and sexual orientation, the right to die, and new issues of free speech raised by the explosion of communications technologies. One of my principal goals is to identify the distinctive kinds of minimalism that serve to improve political deliberation; the underlying conception of democracy thus places a high premium on both deliberation (in the sense of reflection and reason-giving) and accountability (in the sense of control by the voters).     The most tyrannical governments are neither deliberative nor accountable. Contemporary America might well be said to have a high degree of accountability but a low level of deliberation. In the notion of deliberative democracy lies the basis of a claim about how a minimalist Supreme Court, concerned about both constitutional ideals and its limited place in the American order, might promote a democratic nation's highest aspirations without preempting democratic processes. Copyright © 1999 President and Fellows of Harvard College. All rights reserved.