What to Make of Minimalism?

29 Jun

I often rely on Cass Sunstein as my legal guide as he co-writes those huge constitutional law textbooks and is one of the leading lights of liberal jurisprudence.  Also, I’m not a lawyer.  And I’m not in law school.  So, you know.  Expertise.

Anyway, Sunstein is a fan of judicial minimalism (as well as libertarian paternalism in economic and political matters) which makes him something of a “soft-liberal” whose positions are generally amenable to right-of-center and libertarian types.  I mention all of this in light of the Supreme Court’s latest ruling in Hein v. Freedom from Religion Foundation, which he briefly reviews in an essay discussing the court’s conservative divide for the The New Republic:

Roberts and Alito are conservative minimalists. They prefer to preserve previous decisions and work within the law’s existing categories. Their opinions avoid theoretical ambition and tend to be narrowly focused on the particular problem at hand. By contrast, Scalia and Thomas are conservative visionaries, parallel, in many respects, to such liberal predecessors as Hugo Black and William O. Douglas. They favor fundamental change, immediately, and their opinions are sweeping and broad, often calling for overruling longstanding precedents.

My question (for those with more legal training) is this: should I be excited about minimalism (as a principle for sound jurisprudence, not necessarily a utopian legal order)?  Conservatives and liberals both want their “visionaries” on the bench to make a compelling argument for a Law that embodies all that is Good and True in their political weltanschauung.  Would we be better off stacking the court with visionaries from both sides, battling it out for the most compelling vision?  Or is minimalism just a form of sly ideological craftsmanship that, as Prof. Geoffrey Stone argues, has “cynically pretended to honor precedent while actually jettisoning those precedents one after another.”?


One Response to “What to Make of Minimalism?”

  1. Roach July 2, 2007 at 11:20 am #

    It seems to me that whether one honors small “c” conservatism in jurisprudence depends on the status quo ante. For much of the 19th Century very unvisionary Supreme Court Justices did the workaday work of interpreting statutes and rarely engaging in constitutional judicial review. Then they tried to hold the line against the New Deal. They failed. Then a generation of self-styled legal realists radically undermined democracy, particularly at the state level, in the name of progressvism under the label of the (obviously contradictory) substantive due process and equal protection. This is how the Constitution, which says nothing about abortion or many other things, was interpreted to take power away from the people and their elected governors.

    Some think this was a good trend. Others less so. The problem with calls for conservatism now is that they’re essentially being used to consolidate the gains of a previous radical generation of judges who had no respect for stare decisis or conservatism. So it seems more than a little disingenuous, particularly when it comes from people who made the exact opposite procedural argument when it suited them.

    Incidentally, I favor the radical visionary positions of Scalia and Thomas because the result is almost always to limit the power of the fedreal government and respect the power of states as the Founders intended.

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