Vol. 9 No. 9 (September 1999) pp. 407-410.

ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT by Cass R. Sunstein. Cambridge: Harvard University Press, 1999.
290 pages. $29.95.

Reviewed by Lisa A. Kloppenberg, University of Oregon School of Law.


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. This

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dense and thoughtful book, aimed at a scholarly audience, is not easily accessible for students or generalists interested in the Court.

Professor Sunstein argues that minimalism promotes deliberative democracy by encouraging reason-giving, transferring important decisions to "democratically accountable" actors and not foreclosing debate prematurely. He suggests minimalism is usually sound "when the Court is dealing with a constitutional issue of high complexity about which many people feel deeply and on which the nation is divided (on moral or other grounds)." (p. 5) This approach will reduce judicial error and will ease the judicial burden of gathering information, developing theories and working for consensus. He urges caution when judges enter the "political thicket" because "they may be wrong, and they know too that even if they are right, a broad, early ruling may have unfortunate systemic effects" undermining "lasting social
reform." (pp. 26-27) He allows for maximalism when advance planning is important (citing property and contract contexts), when official discretion should be constrained and when judges are particularly confident about their theories and rulings.

Minimalism "seeks to provide rulings that can attract support from people with diverse theoretical commitments." (p. x) This "lowest common denominator" approach provides a thin substantive vision of rights. Minimalists agree that "the Constitution protects broad rights to engage in political dissent; to be free from discrimination or mistreatment because of ones' religious convictions; to be protected against torture or physical abuse by the police; to be ruled by laws that have a degree of clarity, and to have access to court to ensure that the laws have been accurately applied; to be free from subordination on the basis of race and sex." (pp. x-xi) The brief list excludes a host of important rights such as speech rights and criminal process protections. Moreover, its generality shows how minimalism often promotes uncertainty. What constitutes religious discrimination or racial subordination? What is "a degree of clarity"? When is a law "accurately applied"? Although lack of reasoned elaboration undercuts minimalism's "reason-giving" justification, Sunstein urges shallow and narrow decisions to spur debate and counsels that sometimes even silence is constructive. Thus, rather than great debates between majority and dissenting Justices, we often see chimerical unity, opaqueness and confusion. Does lack of guidance from the Court via narrow and shallow interpretation truly promote shared decision making by the polity or is the resultant "dialogue" a
cacophony? The dialogue is certainly designed to disburse power, not to protect rights evenly among various states and federal branches.

By avoiding foundational constitutional issues through minimalist decisions, courts protect the liberal political system by "mak[ing] it possible for people to agree when agreement is necessary" and "mak[ing] it unnecessary for people to agree when agreement is impossible." (p. 14) But, how do judges evaluate when agreement is necessary or impossible? Sunstein advises that courts should not use the "passive virtues" to "perpetuate injustice" (p. 40) In a rare criticism of the Court, he says
that in "cases involving homosexuality and racial intermarriage, it would be reasonable to say

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that the Court has allowed injustice to continue for too long." (Id.) In the next breath, however, he acknowledges that "institutional considerations" accompany substantive determinations. Minimalists value a slow pace for change and piecemeal decision making. Sunstein uses sexual orientation discrimination as an area where reasonable judges might proceed with silence rather than a broad, deeply theorized public judgment condemning such discrimination because "they are not
sure they are right or because they fear a public reaction and seek to lay the ground for more width or depth." (p. 23) Is injustice not present because the sexual majority has not accepted the minority's claim yet? How will acceptance begin if the Justices refuse to label discrimination unconstitutional even when they are certain they're correct? To apply this "injustice" limitation -- biased toward the majoritarian status quo -- minimalists might best consult political pollsters and forecasters.

Professor Sunstein musters little empirical support for such politically grounded waiting. Chapter 6 addresses the constitutionality of affirmative action, which he believes should be decided "democratically, not judicially." (p. 117) The Court's "meandering . . . rule-free path" in recent 5-4 decisions encourages but does not preempt public debate. The Court signals hard moral and political choices by "taking cases, drawing public attention to the underlying questions, and refusing to issue
authoritative pronouncements." (p. 131) Despite an extended public debate, Sunstein defends the Court's continuing avoidance (its denial of certiorari in the Proposition 209 challenge). As a supporter of some affirmative action programs, he seems unwilling to view the Court's work as foreclosing the constitutional issue. He expresses skepticism about the referendum process involved in the 209 debate, and he raises intriguing questions about the conditions for democratic deliberation, noting that maximalism may be warranted when the political process is more about sloganeering and racism than deliberation. (p. 136) Then, he retreats and says that it's "much too soon" to tell whether deliberation is working in this context. (Id.) Has the Court truly fostered deliberation that enhances democracy? Sunstein concludes so, without evaluating the potential impact on democracy of alternative modes of decision making.

Similarly, Professor Sunstein sparsely supports his claims about democracy foreclosing decisions. He criticizes ROE v. WADE (1973) as creating "destructive and unnecessary social upheaval," speculating that a narrower opinion would have "produced a range of creative compromises well adapted to a federal system" and
"would not have deeply compromised the underlying right," which he supports as grounded in gender equality. (pp. 114-15) What right would have been identified? How would it have been less compromised? Wouldn't many citizens protest any declaration of an abortion right, despite its grounding? We find no comparison of
the affirmative action and abortion debates, both arguably robust and widespread in the wake of minimalist and maximalist rulings. Sunstein also criticizes LOVING v. VIRGINIA (1967) for unnecessarily identifying a "right to marry" grounded in substantive due process when the Court could have relied solely on equal protection to invalidate the ban on interracial marriage. "The existence of a 'right to marry' raises many questions about laws forbidding marriage between people who are
related or of the same sex." (p. 30) It is thus hard to see how LOVING foreclosed debate;

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it arguably opened up debate by recognizing a new right.

Finally, Professor Sunstein minimizes the areas in which this Court has been issuing broad and deep opinions. Showing the malleability of his characterizations, he calls the Court's first invalidation of a Congressional act under the Commerce Clause in sixty years (U. S. v. LOPEZ, 1995) minimalist because it gave no deep account of federalism. (Supporting equality, he casts BROWN v. BD. OF EDUCATION (1953) as minimalist because it was foreshadowed by precedent and not self-implementing. Supporting gay rights, he optimistically characterizes ROMER v. EVANS (1996) as maximalist, despite its failure to acknowledge BOWERS v.
HARDWICK, 1986) He ignores important federalism decisions like PRINTZ v. U.S. (1996), NEW YORK v. U.S. (1992), CITY OF BOERNE v. FLORES (1997), SEMINOLE TRIBE v. FLORIDA (1996), and IDAHO v. COEUR D'ALENE TRIBE (1997), whose breadth calls into question numerous precedents. These decisions certainly send significant signals transferring power from federal courts, Congress, and Tribes to States. These developments complement others grounded in Article III and stake out a limited role for federal courts in developing constitutional law. Although these areas were not his focus and full treatment of the Court's jurisprudence is demanding, their absence from discussion skews his depiction of the Court's avoidance practices.

In fairness, Sunstein raises difficult issues with no easy solution. His textured advice is careful and cautious, with caveats and reminders about context. But these are overshadowed by his ardor for avoidance. His minimalist judicial role poses dangers, particularly when appellate courts avoid politically controversial issues and emerging claims.

REFERENCES

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

CITY OF BOERNE v. FLORES, 521 U.S. 507 (1997).

IDAHO v. COEUR D'ALENE TRIBE OF IDAHO, 521 U.S. 261 (1997).

LOVING v. VIRGINIA, 388 U.S. 1 (1967).

NEW YORK v. UNITED STATES, 505 U.S. 144 (1992).

PRINTZ v. UNITED STATES, 521 U.S. 898 (1996).

ROE v. WADE, 410 U.S. 113 (1973).

ROMER v. EVANS (1996).

SEMINOLE TRIBE OF FLORIDA v. FLORIDA, 517 U.S. 44 (1996).

UNITED STATES V. LOPEZ, 514 U.S. 549 (1995).