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.”?