One Case at a Time: Judicial Minimalism on the Supreme Court

FROM THE PUBLISHER

Cass Sunstein mounts a defense of the most striking characteristic of modern constitutional law: the inclination to decide one case at a time. Examining various controversies, he shows how - and why - the Court has avoided broad rulings on issues from the legitimacy of affirmative action to the "right to die," and in doing so has fostered rather than foreclosed public debate on these hard topics. He offers an original perspective on the right of free speech and the many novel questions raised by Congress's efforts to regulate violent and sexual materials on new media such as the Internet and cable television. And on the relationship between the Constitution and homosexuality and sex discrimination, he reveals how the Court has tried to ensure against second-class citizenship - and the public expression of contempt for anyone - while leaving a degree of flexibility to the political process. One Case at a Time also lays out, and celebrates, the remarkable constellation of rights - involving both liberty and equality - that now commands a consensus in American law.

FROM THE CRITICS

Lisa A. Kloppenberg

Professor Cass Sunstein of the University of Chicago Law School has written an important book praising a modest role for judges. He focuses on the minimalist strategies used by the U.S. Supreme Court in many recent, politically charged cases. Professor Sunstein gives us a good preliminary picture of the Court's strategies for avoiding constitutional questions but his picture is incomplete, neglecting or trying to cast as minimalist major shifts like the federalism decisions of the 1990s. He thus ignores the Court's highly selective use of minimalism. This Court has engaged in patterns of both minimalism and maximalism that are complementary, solidifying this Court's vision of a limited role for federal courts in developing constitutional law, particularly when federalism concerns are present.

Professor Sunstein argues that avoidance by the Court promotes democratic dialogue. But his theory is ultimately unsatisfying because his arguments are often conclusory and his examples of democracy-enhancing decisions generally do not support his thesis. Minimalism offers an impoverished constitutional substance. Professor Sunstein downplays the costs of minimalism, including its slow pace for change, its lack of clarity and reasoned elaboration in the development of constitutional law, and its bias against nonmajoritarian interests in many circumstances. Particularly on "socially sensitive" issues where the polity is divided, his modest judicial role may protect courts from political backlash, but only at significant cost to others.

One Case at a Time is worth reading for several reasons. Its topic is critical and the cases are fascinating. The book primarily covers four substantive areas: assisted suicide, affirmative action, gender and sexual orientation discrimination, and free speech issues raised by emerging technology. Professor Sunstein, one of the leading constitutional law scholars in the country, captures the enthusiasm of many current Justices for minimalism. His analysis of their proffered reasons for avoiding and his careful parsing of recent cases are likewise perceptive. He recognizes that minimalism has degrees as well as substantive and procedural components (ranging from denials of certiorari to measured rulings). He persuasively demonstrates that a jurist's stance on minimalism does not correlate neatly with politically conservative or liberal views.

Jeffrey Rosen - The New Republic

The philosophical silence of the Supreme Court is an anti-democratic silence. Have we all been so spooked by the ghost of Warrenism that we have inadvertently revived it in a different form?

Washington Times

With One Case at a Time, Cass Sunstein may well become known as the Nathan Detroit of constitutional law...this is a shrewd and clever book.

Publishers Weekly

Digging much deeper than the limiting liberal/conservative dichotomy through which the Supreme Court is habitually viewed, constitutional scholar Sunstein (The Cost of Rights, with Stephen Holmes, Forecasts, Jan. 11) gives readers a thoughtful analysis and defense of the Court's institutional caution. He uses the term "minimalism" to define the Court's preference for deciding individual cases while leaving "fundamental issues undecided." According to Sunstein, judicial minimalism is desirable both on prudential grounds (because the Court lacks the long-range vision to anticipate the consequences of many decisions) and on political grounds (because the Court leaves fundamental issues for the democratic process to resolve). On the former point, Sunstein offers some compelling insights into the limits of lawyers' and judges' predictive abilities. On the latter point, he will not convince all readers to share his confidence in democratic procedures: some will argue that resolving questions of constitutional rights (e.g., abortion, privacy, the gradations of free speech) exclusively through majoritarian processes may undermine the protection of such rights. Sunstein views sees this danger as one of the many tensions of our constitutional system (along with those between liberty and equality, negative and positive rights). An able writer who makes complex judicial issues accessible, Sunstein offers provocative and informative reading for general readers seriously interested in the life and work of the Supreme Court. (Mar.)

Lincoln Caplan - The New York Times Book Review

...[T]he book's lecturelike thoroughness means that it is not for the casual reader....But for Court watchers and people concerned about high politics, One Case at a Time presents a fascinating argument....[M]indful of the role of the Supreme Court in...government, this admirable book makes a judicious case for a philosophy of judging as a humble, difficult, essential art.Read all 6 "From The Critics" >

WHAT PEOPLE ARE SAYING

Against the tide of those who lament the lost Warren Court or hunger for its conservative successor, Cass Sunstein argues that the current Supreme Court correctly avoids grand constitutional theories in favor of narrow decision making that leaves most matters of distribution and social justice to be decided by democratic majorities. Written with great lucidity, verve, and mastery of contemporary currents in political theory and constitutional law, this is the first judicial philosophy of and for the post-Bork appointees to the Court. -- ( Kathleen M. Sullivan, Stanford Law School ) — Kathleen M. Sullivan

Labeling and 'bean counting' of the Supreme Court and its Justices are frequently all that Americans get by way of description of the activities of the highest court in our system. Even the legal profession finds it is easier to label than to analyze. That is why Cass Sunstein's book is just what the country needs--an understandable analysis of how this Supreme Court goes about its decision making. If it seems to make the 'conservatives' the 'activists' and the 'liberals' the 'strict constructionists,' that only proves that those labels are not very useful and more often than not reflect the eye of the beholder. Nor can Professor Sunstein's use of the word minimalism be dismissed as just another pretty label. The term aptly describes what has been the very touchstone of both the common law and constitutional theory in America for a long, long time. The book represents Sunstein at his best. -- ( Abner J. Mikva, former Chief Judge, U.S. Court of Appeals for the D.C. Circuit ) — Abner J. Mikva

Kathleen M. Sullivan