The Current Supreme Court
In his most recent book, One Case at a Time, Sunstein is enthusiastic about the current Supreme Court, which he considers minimalist (one favoring his version of judicial restraint, that is). Sunstein claims that six of the current nine Justices--Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day O'Connor, John Paul Stevens and David Souter--are cautious about broad rulings and ambitious pronouncements. Minimalists resist adopting broad theories; they do not see outcomes as reflecting rules or theories laid down in advance; they pay close attention to the particulars of individual cases. Since the qualities that define a minimalist judge are unrelated to substantive outcomes, a liberal, a conservative or anything in between could fill the bill, as Sunstein uses the term.
These six Justices are contrasted most notably with Scalia but also with Chief Justice William Rehnquist and Justice Clarence Thomas, who, Sunstein states, "think it is important for the Court to lay down clear, bright-line rules, producing stability and clarity in the law." Sunstein also contrasts the minimalist majority with prior Courts, contending that the character now "is sharply distinguishable" from that when Earl Warren was Chief Justice. Then, it embraced "theoretically ambitious arguments about equality and liberty."
But it is disputable whether the current Court is a minimalist one. Presidents Reagan and Bush appointed Justices O'Connor, Kennedy and Souter, at least partially, on the assumption that they would help to overrule women's right to abortion, but when presented with the opportunity, they did not. Moreover, in a prominent joint opinion in 1992 they each signed upholding that right (Planned Parenthood of Southeast Pennsylvania v. Casey), they declared a broad conception of legally protected liberty. In majestic terms they wrote: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."
In two affirmative action cases decided over the past decade, Justice O'Connor, writing for the majority, invalidated race-based classifications aimed at helping racial minorities. In doing so, she employed a demanding form of judicial review--what lawyers call "strict scrutiny"--that the Court historically used in reviewing race-based classifications adopted by whites to harm racial minorities. In defense of using the same standard in these two diametrically opposed cases, O'Connor announced a broad constitutional rule: Whites who are disadvantaged by other whites in order to assist African-Americans (who have been the victims of past discrimination by whites) are entitled to the same constitutional protection as African-Americans when they allege that whites have discriminated against them. O'Connor's claim that all discrimination based on race is properly subject to the same legal standard is needlessly broad and essentially sounded the death knell to affirmative action programs. In doing so, O'Connor rendered irrelevant to the judicial analysis who is responsible for the discrimination, who is advantaged and disadvantaged by it, and whether the purpose of the discrimination is to aid a minority historically discriminated against.
Most recently, O'Connor and Kennedy joined Rehnquist, Scalia and Thomas in three separate opinions that granted states enhanced autonomy from federal control. Justice Kennedy wrote the majority opinion in perhaps the most significant of the three (Alden v. Maine), in which the Court concluded that the states were immune from suit by state workers who claimed violations of federal labor laws. In terms striking in their latitude, Justice Kennedy trumpeted the call for state immunity: The Constitution "'specifically recognizes the States as sovereign entities.'... They are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty." Justice Kennedy did not, as a minimalist should, employ incompletely theorized doctrine to immunize the states from federal power. Instead, his legal doctrine is a broadly stated political principle.
If a minimalist recognizes that the "real forum of high principle is politics, not the judiciary," as Sunstein writes, and that "the most fundamental principles are developed democratically, not in courtrooms," he is simply wrong to argue that the current court is quintessentially minimalist.
Although always imaginative and provocative, Sunstein's approaches are much less compelling than those that tend to demarcate the polar positions in legal debates. That may well be because others anchor their positions firmly in political theory and shape them so that they have internal coherence. Sunstein, fleeing the substantive preferences and theoretical postulates of the right and left, embraces a middle that emphasizes pragmatism, the status quo and deference toward the politically accountable branches of government. In so doing he is part of a powerful current that includes not only law professors but judges at all levels--as well as the political leaders who will select the judges who will make the law for the next generation.