Cass Sunstein and Judicial Minimalism: The Blindness of the Brilliant

It’s a little silly for me to criticize a scholar far more distinguished than myself (a large set), but Cass Sunstein’s attempt to explain the Supreme Court’s recent term shows that he may too enamored of a pet legal theory to engage in the best legal analysis.

Sunstein has long contrasted “judicial minimalists” with “judicial visionaries.” The former engage in careful case-by-case reasoning from precedent, trying not to move the law too quickly. The latter do the opposite, going for the home run in every case. Visionaries can be either liberal (Earl Warren) or conservative (Nino Scalia); so can minimalists (think Ruth Bader Ginsburg, Sandra Day O’Connor, or the younger Harlan).

Sunstein loves this idea: he wrote several articles about it, followed up with a book espousing the same theory, and writes about it incessantly. And there is something to it: judicial style matters and can have real effects. But not nearly as much as Sunstein says.

Sunstein suggested last year that John Roberts would be the quintessential legal craftsman, and thus a judicial minimalist. Conservative to be sure, but carefully so. And what has happened this year? Roberts marching in lockstep with Scalia, Thomas, and the other radicals.

You might think that this has given Sunstein second thoughts. But no.

In The New Republic, he acknowledges, “It turns out that with stunning regularity, Chief Justice John Roberts and Justice Samuel Alito are indeed voting the same way as their conservative colleagues.” But he insists that there is a divide, because Roberts and Alito do so on narrower grounds. For example, in the recent case on taxpayer standing regarding Bush’s faith-based initiative, Scalia and Thomas would have overturned all taxpayer standing, whereas Roberts and Alito would have let the precedent establishing it stand, but restrict it. Justice Alito said that in the previous case, taxpayers were challenging a legislative appropriation, where as here they were challenging an executive action, and that distinction meant that there was no standing here. “Here, in a nutshell, is the division between the Court’s conservative minimalists and its visionaries,” Sunstein proclaimed.

This is really grasping at straws. Does Sunstein really think that the next time taxpayers sue over a legislative appropriation, Alito and Roberts will gravely uphold standing, saying that they are bound by the precedent? If so, I have a bridge in Brooklyn to sell him. No–they will find some other meaningless distinction to show that there is no standing here, either. The distinction that they insisted on here actually cut against their argument: it makes MORE sense for there to be standing with an executive action, because the President is much less accountable to the public than Congress is. (If you don’t like something that the government is doing, whom do you call: your Congressman or the White House?). Besides, it’s easier to overrule a precedent simply by depriving it of all of its force: this is precisely what Roberts and Alito will do with Roe.

And indeed, Sunstein shows at the end of the piece how weak the distinction is. “What is less clear is how the minimalists will proceed when a case cannot be decided without taking a stand on a precedent that they reject in principle.” Well, actually it’s not less clear at all, because such a decision was handed down yesterday in the school desegregation case. Not only did Roberts overturn decades of precedent, and not only did he overrule two of the country’s best appeals court judges, both of whom have impeccable conservative credentials (Boudin–whom I clerked for–and Kozinski), but he made the patently absurd comparison of the plaintiffs in these cases to the victims of Jim Crow.

Emily Bazelon points out in Slate that lots of moderate legal academics were bamboozled by Roberts. Much to my retrospective surprise, I was not one of them (I signed a petition calling on the Senate to filibuster his nomination.). Remarkably, though, Sunstein still won’t acknowledge what is going on. Call it the academic equivalent of Broder-itis: you’re so above-it-all that you can’t see what is happening.