Legal Legacy | The Nation


Legal Legacy

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Throughout her career, Biskupic writes, O'Connor followed a pragmatic, incremental approach focused on the facts of each case, designed to build coalitions rather than develop strict doctrinal rules. This approach has drawn both criticism and praise. Among its admirers is Cass Sunstein, a University of Chicago law school professor whose recent book Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, advocates a minimalist approach like O'Connor's.

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Herman Schwartz
Herman Schwartz, a professor of law at the American University, is the author of Right Wing Justice: The Conservative...

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Sunstein's case for minimalism is presented as part of a methodological discussion that purports to be neither political nor ideological but rather an objective view about how our Constitution should be interpreted. Scalia, Thomas et al. are described as "fundamentalists" who want to restore the original meaning of the Constitution; the Warren Court, its supporters and successors are labeled "perfectionists" who want to "make the [Constitution] as good as it can be." Both are found wanting. "Minimalists"--Sunstein and O'Connor--try "to reach incompletely theorized agreements" leaving "most fundamental questions...undecided." These have it right, according to Sunstein.

Most of the book is devoted to attacking the fundamentalists' recent victories. Although Sunstein runs through the usual analytical critiques of Scalia's and Thomas's "original meaning" philosophy and their not infrequent inconsistencies, his primary criticism, reiterated constantly without much explanation, is simply that the fundamentalists' views "produce a far worse system of constitutional law" and lead to "intolerable consequences." What makes the system "worse" and "intolerable" is assumed to be self-evident.

As for the "perfectionists," Sunstein acknowledges that "perfectionist" courts in South Africa and elsewhere have abolished capital punishment and created a vast array of civil and social rights. In those countries, he concedes, that may be acceptable, but for the "contemporary United States...minimalism is best and...both fundamentalism and perfectionism are dangerous.... Each of us ought to have a little voice in our heads cautioning: I might be wrong." But that's always true, everywhere, and if the fear of being wrong had stopped the Warren Court and its successors, we might still be living with "separate but equal," legal discrimination against women, official school prayers, unequal voting districts, bans on contraception and abortion, criminalization of homosexual intercourse, fewer protections for speech and much more that Sunstein considers "intolerable." All were outlawed by "perfectionist" judges.

In fact, Sunstein criticizes almost none of the Warren Court's decisions and reserves his scorn for such "perfectionist" claims as the right not to wear seat belts, to use medicinal drugs not authorized by the Food and Drug Administration, to hire or be a prostitute, and to marry a person of the same sex. Except for the last, however, liberals have not sought any of these, and, in any event, it will probably be a long time before the federal courts deal with same-sex marriage--the Massachusetts and other decisions allowing same-sex marriage were decided under state Constitutions, and most of them have been overturned.

Minimalism, on the other hand, has done a great deal of harm. "Minimalist" decisions like Brown v. Board of Education II (1955) allowed gradual school desegregation and produced spurious "freedom of choice" plans that delayed Southern school desegregation for fourteen years. The Casey abortion decision, discussed earlier, which abandoned the strict "perfectionist" approach of Roe v. Wade, and barred restrictions on abortion only if they imposed an "undue burden," is another example. Moreover, providing clear answers to questions that trouble the lower courts is one of the Supreme Court's major responsibilities. The federal appellate courts handle 35,000-40,000 cases annually, the Supreme Court only about seventy-five, and the Court's failure to set out clear rules to guide those courts has cost much time and money.

Should the Democrats be in a position to appoint enough Justices to create a "perfectionist" majority on the Court, why should these Justices not abolish capital punishment once and for all, as courts in other countries have done? Why should they not provide gays and lesbians with the same degree of protection available to other minorities with a long history of discrimination? Overturn the ludicrous 1976 Buckley v. Valeo decision, which equates speech with money and frustrates any hope of meaningful campaign finance reform? Authorize physician-assisted suicide for terminally ill patients who are in terrible pain? Restore the protections for the right to an abortion that Casey undid? All these changes can be made within the limits of judicial prudence and principled adjudication. Right-wing judges have never worried about being wrong. Why should liberals?

That opportunity may not come for quite a while, however. Roberts is 51, Alito is 56, Thomas is 57 and Scalia and Kennedy are vigorous 70-year-olds. The four liberals range from 67 to 86. There will thus be few opportunities to achieve even a thin liberal majority. Some victories will still come, for it is not possible to turn the clock back completely, nor do most conservatives want to. Also, Kennedy may come to find the other four too extreme, as he has several times this year. And there may be surprises. But the odds are against any great advances and for some serious setbacks, at least in the near future. The only way the Supreme Court can be moved back to the left is through politics. As Senator Barack Obama told an Illinois audience after the Alito vote this past January, "If we don't win elections, you're not going to get the judges you want." For that to happen, Democrats have to renew themselves as a party that offers Americans what they need, not just what the "have mores" want. It's not clear that today's Democrats are able--or willing--to do that.

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