Was Ann Coulter right? Some realism about "minimalism".

• Author: Presser, Stephen B.

INTRODUCTION

Ever since the Warren Court rewrote much of the Bill of Rights and the Fourteenth Amendment, there has been a debate within legal academia about the legitimacy of this judicial law making. (1) Very little popular attention was paid, at least in the last several decades, to this problem. More recently, however, the issue of the legitimacy of judicial law making has begun to enter the realm of partisan popular debate. This is due to the fact that Republicans controlled the White House for six years and a majority in the Senate for almost all of that time, that they have announced, as it were, a program of picking judges committed to adjudication rather than legislation, and finally, that the Democrats have, just as vigorously, resisted Republican efforts. Cass Sunstein, a professor at the University of Chicago Law School, (2) and now a visiting professor at Harvard Law School, (3) has written a provocative book purporting to be a popular, yet scholarly critique of the sort of judges President George W. Bush has announced that he would like to appoint. Is Sunstein's effort an objective undertaking, or is it partisan politics with a thin academic veneer? If Sunstein's work (and that of others on the Left in the academy) is something more (or less) than it appears to be, can the work of an unabashedly partisan popular commentator help us to figure out what is happening in constitutional jurisprudence? In what follows, I will first review Ann Coulter's critique of "liberalism," and then I will proceed to suggest that Coulter's criticism might well be applied to Sunstein's approach to constitutional interpretation, insofar as it seems more politically partisan than objectively valid. I will conclude by suggesting that the "radicals" whom Sunstein excoriates are actually those most faithful to our constitutional tradition.

1. ANN COULTER ON LIBERALS VS. CONSERVATIVES

   Ann Coulter is one of the most delightfully provocative pundits currently pontificating. She has gored more than the usual number of sacred oxen and is joyously unafraid to speak her mind in a political climate that--at least in the case of what is now called the mainstream media--is not kind to iconoclastic conservatives. Coulter is most infamous, perhaps, for her suggestion that the way to defeat what President George W. Bush now calls "Islamic fascists" (4) and what others call "Islamofascism" (5) is for the United States to "kill their leaders and convert them to Christianity," (6) and for her observation that some ostensibly grieving 9/11 widows actually seemed to be taking too much joy at the deaths of their husbands. (7) Coulter nevertheless has an extraordinary ability to unmask hypocrisy. In particular, she took aim at liberals in her 2002 book Slander (8) and suggested that their principal means of operation was to vilify conservatives rather than seriously advancing arguments to rebut conservative positions on social issues. As she put it:

   Liberals dispute slight reductions in the marginal tax rates as if they are trying to prevent Charles Manson from slaughtering baby seals. Progress cannot be made on serious issues because one side is making arguments and the other side is throwing eggs.... Prevarication and denigration are the hallmarks of liberal argument. Logic is not their metier. Blind religious faith is. The liberal catechism includes a hatred of Christians, guns, the profit motive, and political speech and an infatuation with abortion, the environment, and ... "affirmative action"[]. Heresy on any of these subjects is, well, heresy. The most crazed religious fanatic argues in more calm and reasoned tones than liberals responding to statistics on concealed-carry permits. (9) Or, again:

   The spirit of the First Amendment has been effectively repealed for conservative speech by a censorious, accusatory mob. Truth cannot prevail because whole categories of thought are deemed thought crimes. In May 2001, former Clinton strategists James Carville and Paul Begala released a "Battle Plan for the Democrats" on the op-ed page of the New York Times. Their central piece of advice was for Democrats to start calling President George Bush names. "First," they said, liberals must "call a radical a radical." Other proposals included calling Bush dangerous and uncompassionate: "Mr. Bush's agenda is neither compassionate nor conservative; it's radical and it's dangerous and the Democrats should say so." Instead of actual debate about ideas and issues with real consequences, the country is trapped in a political discourse that increasingly resembles professional wrestling. The "Compassionate Conservative" takes on the "Republicans Balancing the Budget on the Backs of the Poor." The impossibility of having any sort of productive dialogue about civic affairs has become an immovable reality. (10) Some of this is a bit over the top, but, adding it all up, a sharp and succinct point is still being made. In short, the Left refuses to debate the Right and instead unleashes hate speech in order to demagogue voters.

   In this Article, I argue that Coulter's criticism might also be leveled against at least some of the criticism of conservative jurisprudence prevailing in legal academia. My particular target for this exercise is Professor Sunstein's recent book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. (11) As I will explain below, Sunstein does engage in some thoughtful jurisprudential analysis, but the thrust of his book, as the title suggests, is that United States Supreme Court Justices Clarence Thomas and Antonin Scalia, and others like them on the lower courts, represent a threat to the American republic. This, to Sunstein, justifies calling these justices "radicals" and consigning them to the "extreme right wing." In reality, Justice Thomas, Justice Scalia, and others like them are merely engaged in what we might describe as traditionally conservative jurisprudence. Coulter's words, aimed at a former Democratic presidential candidate, might have some application to Sunstein:

   Striking an especially high note in the 2000 presidential campaign, Vice President A1 Gore aggressively implied that Bush's Supreme Court nominees would bring back slavery. Not only that, but Justices Antonin Scalia and Clarence Thomas were already hard at work on the Republicans' pro-slavery initiative. In numerous campaign speeches, Gore said Bush's pledge to appoint "strict constructionists" to the Court--such as Scalia and Thomas--reminded him of "the strictly constructionist meaning that was applied when the Constitution was written and how some people were considered three-fifths of a human being." If you were one of the swing voters waiting to see which of the candidates supported slavery, at least Gore had cleared up the confusion. (12) Gore got it wrong, as Coulter explains: "At the risk of seeming overly legalistic, Bush, Scalia, and Thomas do not subscribe to a legal philosophy that would bring back slavery. 'Strict constructionism' means only that judges should interpret laws rather than write them. It has nothing to do with slavery." (13) Sunstein's suggestion that Republican judicial nominees are "radicals" or "extreme right wingers," if not quite as fanciful as accusing them of advocating repeal of the Thirteenth Amendment, is still misleading and quite possibly is equally devoid of substance.

2. SUNSTEIN AND ME

   I came across Sunstein's book at a local Barnes and Noble, and, as academics are wont to do, since I write in the same area as he does, I turned to the index to see if I figured into Sunstein's argument. I noticed two entries for my name (14) and then looked them up in the text. Both instances referred to the same quote. (15) In one, the quote was used in italics to headline a chapter, (16) and in the other it was buried in the text of a different chapter. (17) The quote came from an article I had written about Justice Thomas for a short-lived but daring magazine, Legal Affairs, (18) which, possibly quixotically, sought to bring the work of legal scholars to a popular audience. Since most of these scholars were liberals, Legal Affairs was particularly kind in offering me, a conservative, a forum, since the magazine sought to achieve some sort of ideological balance. My article--really a book review of a recent biography of Justice Thomas (19)--sought to explain why he was one of George Bush's two favorite justices, much like another Legal Affairs piece I had written and that ended up as the cover story (20) (the cover provocatively consisting of a depiction of a possible Bush court made up entirely of clones of Justices Thomas and Scalia).

   Because a Court of Justices Scalia and Thomas clones is apparently just what Sunstein fears, it is not surprising that he read my Legal Affairs article on Justice Thomas. He picked up on a point I had tried to make in the Legal Affairs piece, which was the difference between the jurisprudence of justice Thomas and that of Justice Scalia. Justice Scalia had explained to Justice Thomas's biographer that he felt bound by prior precedents of the Court in interpreting constitutional provisions, but that Justice Thomas did not feel so constrained and was more interested in arriving at the constitutional interpretation that was most consistent with the original understanding. (21) Identifying myself with Justice Thomas's jurisprudence and that of some other conservative academics, particularly Gary Lawson of Boston University School of Law--who, like Justice Thomas, has argued that, unlike the common law, constitutional adjudication should not involve the assumption that stare decisis is the binding rule (22)--I had written that "[f]or us, and for Clarence Thomas, it's more important to get it right than to maintain continuity." (23) Taking the quote a bit out of context, at least insofar as it was used as a chapter heading, (24) Sunstein took my reference to "us," that is, to...