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False Modesty: Why the Supreme Court Does Not Need Judicial Minimalism

The Huffington Post logo The Huffington Post 9/03/2016 Evan Bernick
SUPREME COURT © Ron Chapple Stock via Getty Images SUPREME COURT

The passing of Justice Antonin Scalia has left a void on the Supreme Court and given rise to a profoundly important debate concerning the Court's future direction. Over at Bloomberg View, Professor Cass Sunstein argues that it would be a mistake to replace Justice Scalia with a judge who is similarly "heroic"--that is, a judge who favors broad, theoretically ambitious decisions that have a wide impact on American life. Instead, Sunstein urges, "it's a good time for minimalists, who speak softly and carry a small stick."
Sunstein has done more to define and defend minimalism--the idea that judges should favor narrow, theoretically shallow rulings--than any scholar in recent years. Minimalism has proven immensely attractive--it has been embraced by people with very different ideas about what the Constitution means, and it taps into the widely-held belief that judges should be "modest." But minimalism's appearance of modesty is deceiving, and minimalism does not equip judges to enforce the Constitution's limits on government power.
What precisely is minimalism? It is not a theory of constitutional interpretation but a theory of judging--a prescription for deciding constitutional cases in a way that minimizes the judicial footprint. In his article, Sunstein explains that "[m]inimalists reject the idea that judges should adopt deep theories about the real meaning of ideals like liberty or equality. They prefer modest rulings that can be accepted by judges (and Americans) who disagree about a great deal." He has explained elsewhere that minimalists "favor decisions that are narrow, in the sense that they do not want to resolve issues not before the Court" and "shallow, in the sense that they avoid the largest theoretical controversies and can attract support from those with diverse perspectives on the most contentious questions."
Minimalism rests upon the premise that the judiciary occupies a precarious position in our constitutional order and holds that judges must tread carefully to avoid creating social discord. To be sure, minimalists do not advocate absolute judicial deference to democratic enactments--they do, however, argue that judges should not only be wary of the consequences of their decisions but actually tailor their decisions to "attract support, or at least respect, from people who disagree on fundamental matters," thus avoiding unnecessary "damage to democracy."
Minimalism's most fundamental flaw lies in its conception of the judiciary's constitutional role. The Framers established an independent judiciary to "guard the Constitution and the rights of individuals" by determining "what the law is" in individual cases. Because the Constitution is a pervasively countermajoritarian governing document that is designed to safeguard individual rights against the mere will of the politically powerful, judicial enforcement of the Constitution often entails preventing democratic majorities from getting their way. This is not a bug in our constitutional program--it is one of its essential features.
Minimalism's focus on avoiding social conflict entices judges to abdicate their constitutional role in consequential cases. The Constitution is designed to implement a philosophically rigorous theory of limited government, and its terms embody deep theoretical commitments. It is often impossible to resolve intensely controversial constitutional questions concerning racial discrimination, the rights of criminal defendants, the right to bear arms, same-sex marriage, abortion, or campaign finance in a way that is faithful to the law of the land without articulating theoretically robust principles and enforcing them a way that upsets a great many people.
Further, failing to grapple with the theoretical commitments embodied in the Constitution can lead to decisions that direct the public's ire against the judiciary. Consider the case of Kelo v. City of New London (2005), in which the Court upheld the condemnation of an entire working-class neighborhood for transfer to a new private owner in order to promote "economic development." The Court sounded minimalist themes, stressing its unwillingness to depart from precedent, voicing concerns that requiring evidence concerning the economic benefits of the development plan (which never materialized, as they often do not) would "impose a significant impediment to the successful consummation of many such plans," and emphasizing that "the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate." Ordinary Americans were incensed by the decision. Polls showed that over 80% of the public disapproved of the ruling, and that opposition has persisted over time. Some 45 states have enacted eminent domain reform laws in the ten years since Kelo. Americans correctly sensed that the Kelo Court had neglected a fundamental principle--that the government may not take property from A and give it to B simply because B might be able to put that property to more productive use. With a more considered, conscientious effort to ascertain and apply the core meaning of the Fifth Amendment's "public use" requirement, this calamitous decision--and the public outrage that it produced--could have been avoided.
To his credit, Sunstein acknowledges minimalism's limitations and emphasizes that minimalism is not an inexorable command. He has written that "[t]he choice between narrow and broad rulings must itself be made on a case-by-case basis; no rule is adequate to the task." That is to say, minimalism is generally the correct approach, but not always. "No sensible person could embrace minimalism in all times and places," Sunstein has said, and "sensible minimalists offer no theology or dogma." Minimalism is ultimately subordinate to an overriding directive to decide cases in a "sensible" manner.
Unfortunately for Sunstein, his efforts to limit minimalism's scope reveal that minimalism is a collection of intuitions rather than a coherent framework for deciding cases. Minimalism is wary of interfering with the democratic process; wary of creating unnecessary controversy; wary even of itself, to the point where a faithful minimalist must be prepared to recognize contexts in which it is not "sensible" to apply minimalism. To the extent that judges would seek to faithfully adhere to its ambiguous formula--not too broad, not too deep--they are left with little guidance about how or even when to do so. As one critic has put it, minimalism is a recipe for "judicial improv."
Thus, despite its pretense of modesty, minimalism is a most immodest doctrine. By instructing judges to avoid grappling with the Constitution's deep theoretical commitments and to tailor their decisions to prognostications concerning social harmony--except when they determine that it is not "sensible" to do so--minimalism ultimately replaces the rule of law established by the Constitution with the rule of judicial prognosticator-kings and their idiosyncratic sensibilities. It counsels judges to abdicate their duty to expound the theory-laden law of the land; it holds the law hostage to judges' beliefs about what is uncontroversial and what is sensible.
What, then, should judges do in constitutional cases? Judges must identify and apply the principles set forth in our law, drawing upon the Constitution's animating political theory in order to do so. They must seek to determine whether the government has demonstrated the constitutionality of its ends and means with reliable evidence and without unwarranted deference to the government. And they must provide forthright, clear explanations for their decisions, so that Americans are not forced to guess at how future cases will be decided. With the duty of judicial review comes the duty of judicial engagement with the Constitution and the facts of every case.
Sunstein is correct that judges need not be heroes. They must, however, be equipped to enforce constitutional values in both controversial and mundane cases. They must employ a consistent, principled approach in resolving constitutional questions, and be prepared to assert the authority of their office in doing so. In seeking to diminish the judicial footprint, judges risk diminishing the Constitution. And that is the last thing Americans need.

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