I received Cass R. Sunstein’s Radicals in Robes after Harriett Miers was nominated for the U.S. Supreme Court. I completed it less than 48 hours before “Miers asked Bush” to withdraw her nomination after having been skewered by the right wing of Bush’s base. Though Sunstein wasn’t writing specifically about Miers or the nomination process, his analysis is pertinent to where we go from here.
Sunstein, who teaches at the University of Chicago Law School, attempts to elevate the discourse over federal judges beyond litmus tests and paper trails to analysis of theories of constitutional interpretation. He identifies four major theories of constitutional interpretation and analyzes many of the today’s hot button issues through their prisms.
The four approaches very briefly summarized are: (1) fundamentalism, which believes the proper approach to constitutional law is discerning and applying the intent behind the Constitution when it was ratified in 1789, the intent behind the Bill of Rights when it was ratified in 1791 or when the Fourteenth Amendment (through which much of the Bill of Rights has been applied to the states) was adopted in 1868; (2) perfectionism, whose adherents believe the Constitution should be interpreted in broad terms so that its ideals are fully realized and the law is made “better”; (3) majoritarianism, an approach little used today that believes majority rule should impact constitutional interpretation and, thus, will defer to decisions made by the executive and legislative branches as long as they do not clearly violation the Constitution; and, (4) minimalism, which believes judges and courts should try to avoid the deep core questions, such as the role of religion in society, and render rulings on narrow grounds tailored to the precise issues and facts presented by any case rather than making broad pronouncements.
Sunstein excoriates fundamentalism and argues it is a threat to established precedent and American society as a whole. While he is less critical of perfectionism, he also sees it as having inherent failings. Sunstein advocates minimalism, moving constitutional law by, to use his terms, nudges rather than earthquakes. He believes the real Radicals in Robes are fundamentalist judges appointed to the bench by the Reagan, Bush I and Bush II administrations. He contends these fundamentalists tend to be wedded to a right wing agenda of, among other things, overturning any concept of a constitutional right to privacy, abolishing affirmative action, invalidating any gun control laws, and reducing or removing the “wall” between church and state judicially recognized under the Establishment Clause. The most notable proponents currently are Supreme Court Justices Antonin Scalia and Clarence Thomas.
To a great extent, Sunstein’s criticism of fundamentalism and advocacy of minimalism is a fair assessment. Why should the views of the 18th and 19th century be used to resolve issues that confront modern society and were wholly unimaginable at the time the Constitution was approved? As Sunstein points out, honest application of this theory means the federal government could discriminate on the basis of race because, by its terms, the Fourteenth Amendment applies only to the states, not the national government. Likewise, 18th century ratifiers certainly had no intent that the Constitution afford women a right to vote.
Except to those who want to overturn established law, minimalism makes sense. There is little reason for a court to make wide-ranging pronouncements when a case can be decided on narrow grounds that address only the particular issues presented.
How does this relate to Miers and whomever replaces her as the nominee? That individual will replace Sandra Day O’Connor, almost universally considered the swing vote on the Supreme Court over the last several years. Sunstein points out that, while a conservative, her decisions put her in the minimalist camp. Given Sunstein’s belief that minimalism is to be far preferred over fundamentalism or other theories of constitutional interpretation, he also believes the theory to which any federal judicial nominee adheres is important to the future of the country.
Rather than interest groups and politicians scouring paper trails for positions or statements on particular issues, we may be better served by analysis of which of the four theories of interpretation a judicial nominee leans. Those theories may be a better guide to whether our constitutional future will be determined by radicals of either stripe or those who believe the law should evolve by limited steps as American society faces new and different issues.
[T]o a degree that has been insufficiently appreciated and is in some ways barely believable, the contemporary federal courts are fundamentally different from the federal courts of just two decades ago. What was then the center is now the left. What was then the far right is now the center. What was then on the left no longer exists.
Cass R. Sunstein, Radicals in Robes