Sunstein's Law | The Nation


Sunstein's Law

  • Share
  • Decrease text size Increase text size

He criticizes the liberal Warren Court for breaking new constitutional ground on too many fronts too broadly, while also giving no quarter to the constitutional theories of conservative Supreme Court Justice Antonin Scalia. He once clerked for the late Justice Thurgood Marshall, was executive editor of the Harvard Civil Rights-Civil Liberties Law Review and now maintains that the federal courts were singularly ineffective in desegregating Southern public schools in the wake of the 1954 Brown v. Board of Education Supreme Court decision. He endorses the constitutional right to privacy that the Supreme Court relied upon to guarantee women the right to abortion in Roe v. Wade but also claims that the Court should have invalidated the Texas law banning abortions on an extremely narrow ground, not the one it did. He praises Justice Sandra Day O'Connor as a cautious judge who rules narrowly, is deferential to the political branches and is skeptical about judicial competence--even though she has written needlessly broadly in abortion and affirmative action cases.

About the Author

David Rudenstine
David Rudenstine, author of The Day the Presses Stopped: A History of the Pentagon Papers Case (California) and other...

Also by the Author

Secrets: A Memoir of Vietnam and the Pentagon Papers is Daniel
Ellsberg's story of his personal journey from being in the early 1960s a
"dedicated cold warrior" who supported America's e

Another book on the Vietnam War? Yes, and one well worth our attention. Enough time has now passed that A.J. Langguth's Our Vietnam: The War 1954-1975 serves not only as a wonderful addition to the rich and diverse literature on the war but as a good vehicle for revisiting and better understanding a tragedy of profound dimension. It is also an excellent one-volume introduction to the subject for those to whom this two-decade national experience is mainly a historical episode--and a useful lens through which to view the new Administration of George W. Bush as it begins to deal with military and national security issues.

Langguth is not a professional historian who approaches the Vietnam War merely through archives and secondary sources; he is a seasoned journalist who was on the ground in Vietnam for the New York Times when US combat troops began fighting in large numbers. Initially as a reporter and then as the paper's Saigon bureau chief, Langguth covered the war during this transformative period of 1964-65. He returned to Vietnam in 1968 to report on the aftermath of the Tet offensive, and then in 1970 to report on the US invasion of Cambodia. In preparing Our Vietnam he made five trips to Hanoi and Ho Chi Minh City, wherehe writes he was "warmly received by Vietcong officers and lifelong Communist politicians."

Langguth's firsthand experiences in Vietnam help infuse this anecdotally rich chronological narrative with a vividness and immediacy that propel the reader through nearly 700 pages of history. It is disappointing that he did not write a concluding chapter or two in which to reflect on the longer-term meanings and consequences of the war. But, to his credit, he does cover the war not only from the American perspective but also from the vantage points of the South Vietnamese, the North Vietnamese and the Vietcong. Langguth stays out of the way of his story--as he states, "My goal was simply a straightforward narrative that would let readers draw their own conclusions"--but makes his own point of view quite clear in the book's final paragraph: "North Vietnam's leaders had deserved to win. South Vietnam's leaders had deserved to lose. And America's leaders, for thirty years, had failed the people of the North, the people of the South, and the people of the United States."

Our Vietnam compares favorably with other books on Vietnam written by journalists that attracted wide public acclaim when published and retain distinguished and important places within the literature on the war. David Halberstam began The Best and the Brightest on the heels of covering the domestic turbulence created by the war during the 1968 campaign, in which he "had seen the Johnson Administration and its legatee defeated largely because of the one issue." When his book was published in 1971, US soldiers were still fighting in Vietnam and Richard Nixon was President. Thus, although Halberstam's study of how and why American leaders made decision after decision leading up to and sustaining the war remains a touchstone, he wrote of an event he was living through and for which he had limited sources.

Stanley Karnow's Vietnam: A History is an exceptional single-volume history of the American war in Vietnam, which Langguth almost seems to have used as a guide for his own effort. Although Karnow gives his thoroughly engaging, magisterial history a broad perspective, Langguth had access to more information because he was writing later, and his narrative provides a richer Vietnamese perspective on events. Neil Sheehan's A Bright Shining Lie: John Paul Vann and America in Vietnam is a remarkable, at times staggering, historical account of the war. But because Sheehan uses the story of Vann's life to tell the tale--even ending with the observation that "John Vann...died believing he had won his war"--his captivating narrative is more personal than a conventional historical account.

Our Vietnam should help keep the record honest today, too, by constituting an antidote to the published memoirs of those who planned and executed the war, the most prominent being former Secretary of Defense Robert McNamara. In his memoir, In Retrospect, McNamara wrote that his "associates in the Kennedy and Johnson administrations were an exceptional group: young, vigorous, intelligent, well-meaning, patriotic servants of the United States," and he wondered: How "did this group...get it wrong on Vietnam?"The mistakes, he insisted, were "mostly honest mistakes," the errors ones "not of values and intentions but of judgment and capabilities." (Langguth's chronology and evidentiary record contradict that view forcefully.)

Langguth's retelling of America's involvement in Vietnam covers already familiar ground. After the North Vietnamese defeated the French at Dien Bien Phu in 1954, Washington--in keeping with a cold war mentality that gripped much of the nation--promised "free elections" in South Vietnam and dispatched military personnel to train South Vietnam's army. But Vietnam was not on President Eisenhower's radar screen. When he met with President-elect John Kennedy during the transition, he drew Kennedy's attention to Laos as a potential trouble spot and made no mention of Vietnam. As the new President became focused on Vietnam, Under Secretary of State Chester Bowles--both an oracle and a lone wolf--warned (to no avail) against US military involvement there, because it would put the "prestige and power" of the United States on the line "in a remote area under the most adverse circumstances."

In 1961 McNamara became the Kennedy Administration's "supervisor for Vietnam," which caused many, years later, to refer to the conflict as McNamara's War. In 1962 Kennedy began to increase the number of US personnel in Vietnam. In 1963 Buddhists there were mounting a challenge to the autocratic ways of South Vietnam's Prime Minister Ngo Dinh Diem; indeed, that summer one Buddhist monk, Thich Quang Duc, horrified the world by burning himself to death on a Saigon street. Diem was murdered only weeks before Kennedy was assassinated in November 1963.

On to the Johnson Administration: On August 7, 1964, Congress rubberstamped--the House vote was 416 to 0 and the Senate's was 88 to 2--an Administration-drafted resolution informally called the Tonkin Gulf Resolution (following a trumped-up incident of attack on a US vessel), which authorized the President to take "all necessary measures to repel any armed attacks against" US forces and "to prevent further aggression." A month after eight Americans were killed at the US base in Pleiku in February 1965, the United States commenced Rolling Thunder, the systematic bombing of North Vietnam, which continued (with some pauses) until October 1968. In March 1965 President Johnson committed land troops to South Vietnam, which over the next two and a half years were increased to more than 500,000.

When the United States went to war, most Americans might have said that the goal of the war was to stop the spread of Communism. But it is likely that only a small portion of them gave much thought to the meaning of that slogan as it applied to Vietnam. Moreover, a still smaller percentage probably thought carefully about how this war would actually prevent the spread of Communism, and what important interest the United States really had in doing so in South Vietnam per se. Thus, when the war began for the United States in earnest in 1965, the American public had only a wafer-thin understanding of why the nation was fighting a land war in Southeast Asia, the goals of the conflict, the dangers, whether the aims of the war were realistic and what magnitude of commitment and sacrifice might be required to see it through.

Once the war began, it dragged on from one season to the next, year after year. The public became restless and the antiwar movement became forceful. In early 1968 the North Vietnamese pulled off the stunning Tet offensive, which left the indelible image of Marines desperately fighting for their lives as they defended the US Embassy in Saigon. Washington tried to assure the American people that Tet was not a Communist victory. But George Aiken, a Republican senator from Vermont, may have expressed the public's mood best when he said sardonically: "If this is a failure, I hope the Vietcong never have a major success." In the end, Tet shredded confidence in Washington, the idea that the war was being won and the suggestion that the South Vietnamese government was anything but a corrupt puppet.

Senator Eugene McCarthy challenged President Johnson for the Democratic Party presidential nomination and stunned the nation by getting 42.2 percent of the vote in the 1968 New Hampshire presidential primary. A few weeks later, the group of so-called Wise Men advised Johnson not to escalate the war further, and days after that Johnson told the nation he would halt much of the bombing and agree to negotiations with the North Vietnamese. He added that he would not be a candidate for re-election. When the Paris Peace Talks were about to begin, the South Vietnamese refused to attend, and the North Vietnamese and US delegations settled into arguing about the shape of the table at which they would sit--and Americans and Vietnamese continued to die.

When Richard Nixon won the general election, he didn't consider an immediate cessation of hostilities. Instead, he inaugurated a policy--eventually termed "Vietnamization"--of gradually withdrawing ground troops. At the same time, the war from the air was enlarged as he ordered the secret bombing of Communist bases in Cambodia. But the war did wind down, if slowly, and the last US combat troops left South Vietnam in March 1973. Rather than face an impeachment trial, Nixon resigned the presidency in 1974, which left Gerald Ford as President when the North Vietnamese smashed through the gates of Independence Palace in Saigon and defeated the South Vietnamese in 1975.

Vietnam was a tragedy of immense proportions, and although it is regrettable that Langguth does not try to distill its causes, his carefully presented evidence makes it plain that the only arguable United States national security interest in Vietnam was the cold war policy of containing Communism to ward off the oft-invoked "domino effect." But even in this regard, Langguth's account indicates that those who planned and executed the war believed that the primary interest of the United States had less to do with containing Communism than it did with some vague idea of national prestige. As the respected John McNaughton, assistant secretary for international security affairs, stated in a 1965 memorandum to McNamara, "70%" of the purpose of US military intervention during the transition was "to avoid a humiliating US defeat (to our reputation as a guarantor)."

Langguth's account also firmly rules out the idea that Vietnam was a quagmire that US leaders stumbled into unaware of the risks. The "quagmire thesis" first made its mark on public consciousness when David Halberstam wrote The Making of a Quagmire in 1964, maintaining that well-intentioned, idealistic American leaders blundered their way in. After that, many were responsible for restating and elaborating the theme, but it was probably Arthur M. Schlesinger Jr., the prominent historian and former Kennedy aide, who gave the thesis one of its most quoted expressions, in The Bitter Heritage: Vietnam and American Democracy, 1941-1966, published in 1967.

When I did my research for The Day the Presses Stopped: A History of the Pentagon Papers Case, it seemed that the Pentagon Papers had smashed the quagmire thesis to smithereens. The Pentagon Papers were a massive, 7,000-page, top-secret military history of America's involvement in Vietnam from the end of World War II to 1968, which McNamara had commissioned in 1967 and which Daniel Ellsberg leaked to the New York Times (and the Washington Post also ran) in 1971. They consisted of government documents embodying key decisions that led up to the war and sustained it, as well as accounts written by so-called Pentagon historians whose task it was to write a narrative of the decisions and events as recorded in the government documents that the study comprised.

But the theme of a morass that had trapped us unwittingly proved resilient. Weeks after the Pentagon Papers became public, none other than Schlesinger stepped forward to defend the quagmire claim against attacks on it by Ellsberg and others. Schlesinger wrote that "the Vietnam adventure was marked much more by ignorance, misjudgment, and muddle than by foresight, awareness, and calculation." He concluded that "I cannot find persuasive evidence that our generals, diplomats, and Presidents were all that sagacious and farsighted that they heard how hopeless things were, agreed with what they heard, and then 'knowingly' defied prescient warnings in order to lurch ahead into what they knew was inevitable disaster."

Even today that view continues to have currency, but Langguth will have none of this. He establishes not only that ranking US officials time and again perceived the dangers but that they were simultaneously unconvinced that the United States had any meaningful national defense or security interests in Vietnam that would have warranted war. Langguth's portrait is one of these same leaders feeling hemmed in by domestic political considerations. They believed that the harm to themselves at home (as well as perhaps to their party) would be too substantial if they were to change the direction of the cold war-inspired policies that were spawned at the end of World War II, and gradually but relentlessly supported the American military involvement in Southeast Asia.

Consider three incidents recounted by Langguth as illustrative of this theme. President Kennedy told his scheduling secretary, Kenny O'Donnell, in 1963 that "withdrawal in 1965 would make him one of the most unpopular presidents in history. He would be damned everywhere as a Communist appeaser. 'But I don't care,' Kennedy said. 'If I tried to pull out completely now from Vietnam we would have another Joe McCarthy red scare on our hands, but I can do it after I'm reelected. So we had better make damned sure that I am reelected.'"

During a 1964 taped telephone conversation between President Johnson and Senator Richard Russell of Georgia, Russell said, "I don't see how we're ever getting out [of Vietnam] without fighting a major war with the Chinese and all of them down there in those rice paddies and jungles. I just don't see it. I just don't know what to do." Johnson answered: "That's the way I've been feeling for six months." When Johnson asked Russell, "How important is it to us?" and Russell answered, "Not important a damned bit," the President did not disagree. Johnson also told Russell that he did not think people knew much about Vietnam and that "they care a hell of a lot less." Toward the end of the conversation, Johnson speculated, "They'd impeach a President that runs out, wouldn't they?"

Langguth also reports a telling incident just before Christmas 1970, when President Nixon told Henry Kissinger, his National Security Adviser, that he "considered making 1971 the last year of America's involvement in Vietnam." Nixon said that he planned to tour South Vietnam in April 1971, reassure South Vietnamese President Nguyen Van Thieu about the consequences of the impending US withdrawal and then come home and "announce that America's role in Vietnam was over." Kissinger protested. He argued that after the withdrawal, the "Communists could start trouble" in 1972, which meant that the "Nixon administration would pay the political price in the 1972 presidential election." Kissinger advised, as Langguth recounts, that "Nixon should promise instead only that he would get American troops out by the end of 1972. That schedule would get him safely past his re-election. Nixon saw the wisdom in Kissinger's argument that guaranteeing his second term would require American soldiers to go on dying."

It would be overreaching to assert that Kennedy, Johnson and Nixon made defense and national security decisions solely in response to their own perceived political fortunes, but the evidence does make it clear that their decisions were greatly influenced by the consideration. And to accept that domestic political concerns played such a pivotal role in the US war in Vietnam, which cost 57,000 American and an estimated 2 million Vietnamese lives, constitutes a profound challenge to the capacity of a democratic order to fashion and implement moral and prudent policies.

As damning as it is to accept the degree to which personal and party interests prompted policies that led to such a protracted war, it would be a mistake to think of the Democrats and Republicans who made those decisions as somehow uniquely flawed. It is unlikely that the qualities of mind, temperament and character of current and future political leaders will be more vital, wise or resourceful than those who occupied high office between 1954 and 1975. One must accept that the United States is not likely to have leaders who have the vision, the ability to communicate and that rare quality of leadership that will allow them to reshape what is politically possible by fundamentally altering (after they have helped formulate it) an entrenched mindset that dominates a nation.

Although Langguth's Our Vietnam does not confront this conundrum, his vivid retelling of the American war there allows us to consider once again the role played by the antiwar movement in bringing the war to an end. In so many ways, the movement was chaotic and ineffective. But can one imagine what would have been the course of the conflict if there had been no movement? Would the US combat forces in Vietnam have risen to a million? Would the United States have used nuclear weapons? Would the United States have supported a war of attrition for another three or four years? The movement was the countervailing force to, in its words, "the system" that made and sustained the war. The movement restrained Johnson's buildup; it put Senator McCarthy in a position to mount a challenge to a sitting President; it pressured Nixon to find a way out of an even longer war. The movement accomplished nothing quickly or easily--it couldn't. It was battling a cold war sensibility implanted in the American mind since the end of World War II. What is so astounding, therefore, is not that the movement did not achieve more, but that it achieved so much.

Just as a people may set constraints on the political process that politicians experience as a prison without walls, the people may also be, as they were during the Vietnam War, the system's last best hope. And if that is true, then the people need to be fully engaged as the inexperienced President Bush confronts an array of defense and national security issues: When and under what circumstances should the United States commit ground forces to a situation comparable to Kuwait or Bosnia? Should the United States deploy a national missile defense system? Is the United States meddling in a civil war in Colombia under the guise of advancing a hapless "war on drugs"? If dangerous weapons of mass destruction are identified with certainty in a nation considered a threat, what is the appropriate response?

Langguth's Our Vietnam reminds us time and again of the importance of skepticism and distrust in assessing defense and national security policies. One anecdote about that engagement makes the point memorably. In August 1964 Johnson was widely praised for ordering airstrikes against North Vietnam in the wake of the Tonkin Gulf incident. The influential New York Times columnist James Reston wrote that "even men who had wondered how Johnson would act under fire 'were saying that they now had a commander-in-chief who was better under pressure than they had ever seen him.'" There were not many dissenting voices, but I.F. Stone was one. Referring to the right-wing Republican presidential candidate, who criticized Johnson's policies toward North Vietnam as insufferably weak, Stone wrote in his weekly: "Who was Johnson trying to impress? Ho Chi Minh? Or Barry Goldwater?" Stone's response in this pivotal event is a vital example of a frame of mind that would serve the nation well if it were widely adopted. Any book that becomes a vessel for meaningful re-examination of a national tragedy is exceptional and demands broad attention. And that is what Langguth's book is, and does.

You may not have heard of the person holding such seemingly paradoxical and even contradictory views. But some day--and that day may not be far away--Cass Sunstein may be setting law as a federal judge on either a Court of Appeals or the Supreme Court itself. Sunstein, a University of Chicago law professor who is astonishingly versatile and stimulating, may not be the academic equivalent of Halley's comet, but if his productivity during the years ahead is comparable to that of the recent past, he may soon be popularly seen as equally incandescent. This year alone, he has published two books. One (One Case at a Time) he wrote alone; the other (The Cost of Rights) he co-wrote with Stephen Holmes. Over the past several years Sunstein has written five books and co-edited five others, including two prominent legal texts. During this same period, he has penned dozens of technical legal articles, which are often referred to by courts, including the Supreme Court; testified before Congress; served on prestigious committees; written newspaper columns; and spoken out on compelling disputes such as the impeachment of President Clinton, the independent counsel law, the content of television programming, affirmative action, abortion, the rights of homosexuals and the right to die.

Sunstein's substantive views make him a centrist, a mindset that has dominated and continues to dominate American law schools. Rejecting sirens from the right and the left, Sunstein rejects the Law and Economics claim that the goal of law is efficiency or wealth maximizing, as well as the Critical Legal Studies emphasis on the indeterminacy of law and the role of judges in protecting and advancing the interests of the powerful. Instead, Sunstein places great emphasis on judges' being pragmatic and cautious, deferential to the political processes, anti-theoretical and respectful of prior case law, tradition, dominant values and the status quo.

Given his middle-of-the-road views, Sunstein is certainly not a man for all political seasons. But he may well be the man for this season, one featuring politically powerful centrists such as President Clinton and would-be successors to his job Vice President Al Gore and Governor George W. Bush.

'Deliberative Democracy'

Sunstein claims that the American constitutional scheme aspires to a "deliberative democracy," in which differences endemic to a pluralistic society are hammered out by legislators who support favored outcomes for valid, principled reasons. Thus, Sunstein rejects the idea that the constitutional system is no more than a simple majoritarianism in which the prevailing view is deemed correct, nor is it an "aggregation of private 'preferences'" in which domination by the powerful is unobjectionable. A deliberative democracy places a premium on the "exchange of reasons by people with different information and diverse perspectives." And so, Sunstein writes, "naked preferences," whether asserted by the majority or the powerful, are "forbidden" unless supported by "reasons." Sunstein makes clear that constraints exist on the "kinds of reasons that count as valid": Legislation cannot be justified on grounds that are "religious" in nature, "that deny fundamental equality of human beings," "that reflect contempt for fellow citizens" or "that attempt to humiliate" citizens.

Unfortunately, this scholar's effort to construct a theory of deliberative democracy as a basis for constitutional interpretation and the role of courts is ultimately unconvincing. His concept is based on an assumption of political equality among all citizens, after all. But formal equality--one person, one vote--bears little relationship to conditions that affect current legislative and executive agendas at the federal level. Failed efforts to reform campaign financing laws and Governor Bush's raising of $37 million to finance his presidential campaign put the lie to the claim that all voters have equal influence. In addition, the idea that the federal government routinely functions as a deliberative process is fanciful. Consider two examples. First, the Republican-controlled Congress hogtied the country for a year before it impeached President Clinton. The full House adopted the articles of impeachment so quickly it made no pretense of deliberating, and the Senate redefined a trial to mean a proceeding without witnesses. Second, for yet another year--and even in the immediate wake of additional staggering school killings--Congress failed to pass effective legislation controlling guns, even the most powerful assault weapons, used by neither hunters nor shopkeepers.

Although Sunstein's concept of deliberative democracy may give some theoretical texture to his interpretive approach to the Constitution and his view of the role of courts in society, it is ultimately extremely vague. In fact, Sunstein's concept is so fuzzy it would be consistent with constitutional interpretations and a judicial role quite at odds with his own particular preferences. Courts that expansively interpreted the Constitution and aggressively overturned legislative decisions, and courts that interpreted narrowly and routinely deferred to legislative choices, could both claim adherence to Sunstein's conception of deliberative democracy.

Interpreting the Constitution

Arguments over how the Supreme Court should construe ambiguous constitutional terms have bedeviled the Republic since its founding. In essence, the fierce debate is fueled by the idea that federal judges, who are appointed for life, are for all practical purposes unaccountable for their decisions. Given the fact that the nation's primary political commitments are to its democratic processes, the question becomes what restraints limit the power of--to use Justice Scalia's shrill term--the "Imperial Judiciary." Although senators frequently state during confirmation hearings that judges should "apply" the law, not "make" it, everyone knows that judges make law, at least in the sense that most important cases arise under constitutional provisions that are so broad that a judge has ample latitude to decide in any of several different ways. Thus, debates over how to interpret the Constitution often boil down to one's attitude toward judicial discretion. If broad judicial discretion is understood as a mask hiding judicial imposition of personal views on the nation, the odds are that one would strongly favor an interpretive theory such as originalism or literalism, which aim at sharply confining judicial discretion. If judicial discretion is considered intrinsic to the enterprise of interpreting the Constitution--as Chief Justice John Marshall, who certainly favored investing the judiciary with substantial power, believed when he wrote almost 200 years ago, "We must never forget that it is a constitution we are expounding"--and if judges are considered an important brake on misguided democratic impulses and a critical last resort for protecting political minorities and basic personal liberties, one is likely to favor construing the text of the Constitution not only by reference to its structure and history but also to traditions and perhaps moral and political theories.

It is within this crucible that Sunstein attempts to ride the middle ground. Because he often defines his approach to interpreting the Constitution by contrasting it with others, it is helpful to review interpretive theories he rejects. Sunstein takes the interpretive doctrine known as originalism and championed by Justice Scalia (as well as former Judge Robert Bork) to the woodshed. That doctrine asserts that judges are obligated to construe the Constitution in accord with the meaning given it by those who wrote and ratified it. Scalia argues that such an approach limits judicial discretion and protects the political branches from undue judicial interference. Many of the basic problems in Scalia's thinking are helpfully identified by Sunstein: Scalia's approach causes judges to precommit themselves to outcomes in future cases even though they may lack information or do not fully understand the values at stake; they may short-circuit the democratic process in doing so. Scalia's originalism also fails to promote democracy because it does not come to terms with the internal morality of democratic ideals. And neither is originalism the only interpretive approach to the Constitution that would limit judicial discretion, promote stability and enhance democratic self-government.

Sunstein's next targets are interpretive theories that reject the originalist claim that the meaning of the Constitution is tethered to historical understandings. Instead, they direct judges to employ values and perspectives not explicitly mentioned in the Constitution to interpret its ambiguous provisions, and they urge that judges act in accord with their best understanding of what makes "best sense of the relevant provision." Sunstein places into this category theorists who are thought of as political liberals (such as Ronald Dworkin and Laurence Tribe, who advocate personal rights) as well as theorists who are political conservatives (such as Richard Epstein of the University of Chicago Law School, who supports property rights), but he mainly aims his fire at Dworkin. He claims that Dworkin "thinks that the [Supreme] Court should be willing to invalidate legislation if good arguments from principle suggest that legislation is invalid, at least if those arguments 'fit' with the existing legal materials." Sunstein claims that Dworkin's effort to turn the Court into a forum that declares high principles seriously "misconceives the role of the Supreme Court in American government, a role that very much grows out of the Court's understanding of its limited capacities and its potential for error."

Sunstein also criticizes the view that the Court should invalidate legislation only when such outcomes reinforce the democratic process. This perspective holds that the courts should act "to improve the democratic character of the political process...by protecting rights that are preconditions for a well-functioning democracy, and also by protecting groups that are at special risk because the democratic process is not democratic enough." Sunstein finds this approach, which is generally associated with its most prominent proponent, John Hart Ely, seriously flawed for two reasons. Any theory of judicial review must be built on substantive reasons, Sunstein contends, and Ely's process-oriented approach fails to identify those specifically. Limiting a court's ability to strike down laws to circumstances in which that would reinforce democracy is too restrictive; courts must also invalidate legislation that conflicts with minimal substantive guarantees.

Sunstein's approach to interpreting the Constitution begins with the text, but he does not believe it answers all or even most of the important questions presented to the Supreme Court. Because our founding document is "open-ended," Sunstein claims that the interpreter must examine the structure of the constitutional plan, which provides a "degree of assistance." Here again, however, Sunstein concedes that structure goes only so far in helping to interpret important aspects of the Constitution involving such matters as "scientific speech, government funding of the arts and public education, affirmative action, abortion, campaign finance regulation, or pornography." In these circumstances, Sunstein states that it is "reasonable to look to history," even though there are "major limits" to this approach. He concedes that many constitutional issues may be properly resolved only by resorting to "ideas external to text and structure," which must be justified in "moral and political terms."

But having once made that concession, Sunstein emphasizes what in his mind is an important point: He claims that it is necessary only that judges have "good...rather than bad" interpretive principles and that this is a far cry from insisting that judges "make the law 'the best it can be'" by identifying it with broad principles of political philosophy. Thus, although Sunstein identifies what he believes to be a "set of minimal substantive commitments" on which US law "has converged"--including the right to free political dissent, protection against discrimination on the basis of one's religious beliefs, freedom from torture and police abuse, and freedom from subordination on the basis of race and sex--he opposes the Court's protecting such commitments by rulings that hinge on broad principles of political theory. Instead, the Court should rule narrowly, deciding only what is needed to dispose of the dispute at hand. Thus, in disputes involving affirmative action, homosexuality, gender, free speech and the right to die--to name only a few--Sunstein favors emphasizing the particular aspects of a case and avoiding rulings cast on principled conceptions of human dignity, individual liberty and substantive equality (the democratic process itself, not the judiciary, should respond to these divisive matters, in his view).

Sunstein's endorsement of reaching outside the Constitution for values to use in interpreting it leaves him vulnerable to the charge that he favors judges making law out of whole cloth. His denial that this permits judges free rein makes him seem inconsistent, and lumps him as well into a cadre of legal intellectuals who deny that a judge's political and social values powerfully influence his or her constitutional interpretation. Sunstein's refusal to root the values and perspectives he favors in broad principles of political morality, combined with his insistence that the Court develop constitutional doctrine by means of limited, narrowly conceived rulings, opens him to the charge of favoring an ad hoc, unprincipled approach to interpreting the Constitution.

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.

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.

  • Share
  • Decrease text size Increase text size

Before commenting, please read our Community Guidelines.