The Role of the Courts
Sunstein believes that courts should play only a limited role in the governing structure by using technical doctrines to avoid reaching substantive decisions--doctrines the late Alexander Bickel termed the "passive virtues"--and by rendering judgments of limited impact by employing "incompletely theorized agreements" and "analogical reasoning." Incompletely theorized agreements are judicial outcomes "backed not by abstract theories but by unambitious reasoning on which people can converge from diverse foundations." Analogical reasoning forces a judge to ask: How does this case compare with those cases that have come before? Sunstein maintains that the use of analogical reasoning "reduces the need for theory-building...by creating a shared and relatively fixed background from which diverse judges can work" and has the advantage of permitting judges to decide cases on narrow grounds.
Sunstein offers overlapping reasons to support what amounts to his version of that hallowed conservative plaint, judicial restraint. First, he contends that courts are poor instruments of social reform. "Study after study," he writes, has established that courts are "ineffective in bringing about social change," and he enlists Roe v. Wade to support his point. Roe increased women's access to safe abortion, but it did not "dramatically increase the actual number and rate of abortions." More "fundamentally," he contends that Roe produced negative political consequences because it "contributed to the creation of the 'moral majority'; helped defeat the Equal Rights Amendment; prevented the eventual achievement of consensual solutions to the abortion problem; and severely undermined the women's movement, by defining that movement in terms of the single issue of abortion."
Judicial restraint is good, Sunstein argues, because it contributes to social stability. Reasonable pluralism is a defining characteristic of free societies, and one characteristic of political liberalism is "to ensure that diverse people, operating from their own foundational accounts, can converge on a range of basic principles." Because diverse groups might disagree over the reason that a verdict is correct but nonetheless support it, courts can help foster what John Rawls terms "overlapping consensus" by rendering incompletely theorized judgments. Another advantage in exercising restraint is that judges may err by selecting incorrect normative rules, by failing to perceive the immediate consequences of their decisions and by overlooking the longer-term impact of their rulings. Last, judicial restraint promotes democracy because it tends to leave issues open for deliberation.
Sunstein's concept of judicial restraint plays out as something quite different from what the term usually means, however. Traditional judicial restraint--frequently associated with Justice Felix Frankfurter--denotes an unwillingness to invalidate legislation. In contrast, Sunstein favors judicial rulings that strike down laws when appropriate, but only for narrowly conceived reasons that do not embody--to use his terms--"wide" and "deep" implications for other legal and public-policy issues.
Three examples may help make Sunstein's concepts concrete. As noted, although he does not claim that the Supreme Court should have upheld the Texas statute in Roe v. Wade, he is critical of the Court's reasoning. He maintains that the Court should simply have stated--since the pleadings indicated that the plaintiff had been raped--that a "state may not forbid a woman from having an abortion in a rape case, or that a state may not ban all abortions in all circumstances." Sunstein concedes that such a decision would have left women's right to abortion in "considerable doubt," but he speculates that the "democratic process" might have done "much better with the abortion issue if the Court had proceeded more cautiously and in a humbler and more interactive way."
Sunstein applauds the 1996 decision in Romer v. Evans, in which the High Court concluded for the first time that discrimination against homosexuals violates the equal protection clause. He is particularly supportive of the reasoning there because of its narrowness, which left completely unaddressed such controversial issues as the ban on same-sex marriages. Sunstein also approves of the 1997 decision in the "right to die" case Washington v. Glucksberg, in which the Supreme Court denied people who are terminally ill the right to end their lives with the assistance of a physician. The hotly contested case drew the submission of a legal memorandum written primarily by Ronald Dworkin and signed by five other nationally prominent philosophers: Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon and Judith Jarvis Thompson. The brief argued that in a free society individuals must be permitted to make decisions on deeply personal matters that concern "how and why human life has value." Drawing support from the Court's abortion cases, the brief contended that every person "has a right to make the 'most intimate and personal decisions central to personal dignity and autonomy,'" including "some control over the time and manner of one's death." But Sunstein has little patience for the philosophers' position. Not only does he oppose reaching decisions by deductive reasoning from first philosophical principles but he sees the right to die as divisive and implicating facts and values more appropriate for legislative consideration and compromise than judicial declaration.
Sunstein's general assault on the federal courts is unwarranted. Courts are imperfect social reformers, but they are far more effective than the professor allows. In addition, Sunstein's claim that courts are ineffective social reformers is highly contingent on the failure of the executive and legislative branches to assist courts in enforcing minimal constitutional requirements upon complex and intransigent institutions such as prisons, schools and mental hospitals. Few would claim that courts can effectively transform entrenched and resistant bureaucracies without assistance. Indeed, the very reason courts possess the great power to say what the law is is that the "least dangerous branch" is so precariously dependent on the executive and legislative arms of government for enforcement of its orders.
Sunstein is surely correct that judges should be modest about their competency. The rub comes, however, when judges must decide how to dispose of a matter. What degree of confidence must a judge possess in the correctness of a rule and its likely consequences before enshrining it as a basis for a judgment? Judges cannot calibrate subjective factors with slide-rule precision. Thus, apart from being a sensible reminder for modesty and caution, an emphasis on judicial humility offers little concrete guidance.
Then, too, the premise that legislatures (as opposed to courts) are more nurturing of the status quo and better suited to promoting stability is not necessarily correct. The "Contract With America" revolution of 1994, President Lyndon Johnson's civil rights and antipoverty legislative programs of the mid-sixties and President Franklin Roosevelt's New Deal programs of the thirties--to name a few of the obvious ones--are moments of startling shifts produced by legislative action. In addition, incremental change may not always be the best way to engender stability. Judicial rulings framed in broad terms protecting personal liberties and political minorities may contribute mightily to long-term political stability even if they create immediate contentiousness. Sunstein's suggestion that judicial decisions threatening to the status quo would be calmly integrated if the Supreme Court moved in incremental, legalistic steps seems naïve. It is hard to imagine that the Christian right would be any more accepting of a woman's right to an abortion if the Supreme Court had built toward that result in three decisions over a decade's time.
In urging his version of judicial restraint, Sunstein, except at the extreme margins, proves to be agnostic when it comes to substantive values. Restraint is preferable to broad principles of political morality even though "restrained" judges might prefer--within wide boundaries--state power to individual liberty, private property rights to personal or community ones, security over freedom and states' rights over federal power. In the tradition of the eighteenth-century English philosopher Edmund Burke, Sunstein is powerfully protective of the status quo.