Sunstein's Law

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.

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.

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