Measuring meta-doctrine: an empirical assessment of judicial minimalism in the Supreme Court.

• Author: Anderson, Robert, IV

One of the most influential recent theories of Supreme Court decision making is Professor Cass Sunstein's "judicial minimalism." Sunstein argues that a majority of the Justices of the Rehnquist Court were "minimalists," preferring to "leave things undecided" by favoring case-by-case adjudication over ambitious judicial agendas. Although many legal scholars have embraced Sunstein's argument, no piece of scholarship has attempted a quantitative empirical test of the theory. This Article develops an empirical measure for judicial minimalism and examines whether minimalism affected the opinion writing and voting of the Justices on the Rehnquist Court. The empirical analysis supports the conclusion that judicial minirealism has a statistically significant effect on the opinions of the Justices, providing the first quantitative evidence of "metadoctrine" in the Supreme Court. The Article also provides estimates of minimalism for the new Roberts Court, suggesting that the new Court may be drifting slowly away from the minimalism of the Rehnquist years.

INTRODUCTION I. MEASURING JUDICIAL MINIMALISM A. Introducing Professor Sunstein's Minimalism B. An Empirical Definition of Minimalism II. HYPOTHESES, DATA, AND METHODS A. The Data B. The Justices in "Minimalist Space" III. THE EVIDENCE FOR MINIMALISM ON THE REHNQUIST COURT A. Measuring Maximalism B. Visualizing Minimalism C. Some Corroborating Evidence 1. Dissents from Denial of Certiorari 2. Coalition Size 3. Citation Analysis D. Summary and Some Qualifications IV. THE MEANING OF MINIMALISM A. Interpreting Minimalism B. The Impact of Minimalism on Supreme Court Doctrine C. An Example: Webster v. Reproductive Health Services D. Objections to the Minimalism Measure 1. Theories of Constitutional Interpretation 2. Fractiousness or Proclivity to Write Separately 3. Rules versus Standards 4. General Reasons for the Minimalism Interpretation 5. Professor Siegel's Analysis E. A Summary and Some Affirmative Reasons for This Measure of Minimalism V. LOOKING AHEAD TO THE ROBERTS COURT CONCLUSION INTRODUCTION

One of the most influential recent theories of Supreme Court decision making is Professor Cass Sunstein's "judicial minimalism." In an extended series of books and articles, (1) Sunstein has developed the thesis that a primary source of division among the Justices on the Rehnquist Supreme Court was judicial minimalism--that is, disagreement not over what to decide in individual cases, but over how much to decide in individual cases. Sunstein describes as "minimalists" those Justices on the Rehnquist Court who preferred case-by-case adjudication of disputes on the unique facts before them, but who avoided venturing "broad rules and abstract theories" that resolved other cases not before them. (2) In contrast, he describes as "maximalists" those Justices who preferred to "set[] broad rules for the future" and "give[] ambitious theoretical justifications for outcomes." (3) In the Rehnquist Court, Sunstein argues, the conflict of minimalists against maximalists became "the most striking feature of American law in the 1990s." (4)

Sunstein's theory of judicial minimalism has potentially sweeping implications for the study of the Supreme Court in general, and for the legacy of the Rehnquist Court in particular. Sunstein argues that minimalism has been one of the most significant and divisive issues among Justices on the Rehnquist Court. He asserts that a majority of the Justices on the final Rehnquist Court (1994-2005) were minimalists, including the important swing Justices in the ideological center of the Court--Justices O'Connor and Kennedy. (5) Moreover, Sunstein does not view minimalism as an abstract philosophical difference that only occasionally surfaced in the Justices' written opinions. Instead, he argues that "[t]he largest struggles on the Supreme Court have been over when to speak and when to remain silent," and that in many cases "the justices contest exactly that issue." (6) If this account of Supreme Court decision making is true, then scholarship about the Court, both in the legal literature and especially in the political science literature, has overlooked much of what really drives disagreement among the Justices.

The practical significance of minimalism, however, is difficult to ascertain without empirical evidence of whether minimalism actually influences the opinion writing and voting of the Justices. (7) Although many scholars have embraced Sunstein's characterization of the Rehnquist Court, (8) other scholars have criticized his failure to provide empirical support for the theory. (9) One recent article, in fact, goes further, arguing that empirical evidence contradicts Sunstein's theory. (10) Similarly, Sunstein has been criticized for focusing on specific types of cases and for relying on "too few data points to be truly convincing," (11) a criticism that reflects Sunstein's focus on a handful of high-profile cases in constitutional law, rather than conducting a comprehensive survey of minimalism across a broad range of cases. Thus, although it is certain that judicial minimalism has had an important influence on scholarship, stimulating an "ever-burgeoning literature" (12) on the subject, it is less certain that minimalism has had an important influence on the Justices.

The resolution of this empirical controversy is important not only for positive research on judicial decision making, but also for normative theorizing about judicial modesty and restraint. There are two principal reasons for this. First, the idea of minimalism as a normative theory is controversial and has generated a tremendous "buzz" in legal scholarship. (13) Yet, despite the scholarly interest, there is certainly nothing like a consensus on the normative desirability of minimalism. Second, even if scholars came to a consensus on the normative merits of minimalism (a seemingly unlikely prospect), the descriptive accuracy of the minimalist account is important to evaluating minimalism as a normative theory of adjudication. (14) This is because, as Sunstein himself acknowledges, "it is unhelpful to urge courts to adopt a role that they will predictably refuse to assume." (15) In this sense, it seems that both Sunstein and his critics would agree that there is an urgent need for an assessment of the descriptive theory of judicial minimalism.

This Article is an attempt to provide the first quantitative empirical assessment of Sunstein's theory of judicial minimalism. Using new data from the Rehnquist Court's 1994-2005 Terms and the Roberts Court's 2005-2007 Terms, this Article finds considerable evidence for a "meta-doctrinal" divide among the Justices that is largely consistent with Sunstein's theory of judicial minimalism. This divide mirrors, in large measure, Sunstein's descriptive claims about which Justices are minimalist and which are maximalist. Many of the minimalist Justices identified by Sunstein--such as Justices O'Connor, Souter, and Ginsburg--differ systematically from the maximalist Justices identified by Sunstein--such as Justices Scalia and Thomas. Although the evidence may not point to minimalism as the "most striking feature of American law in the 1990s," (16) these relationships provide the first objective quantitative evidence for a systematic and theoretically important metadoctrinal divide among the Justices of the Supreme Court.

The results also suggest several important and even surprising amendments to Sunstein's descriptive account, amendments that respond in part to some of Sunstein's critics. First, the results suggest that Chief Justice Rehnquist may have been, in fact, one of the most minimalist members of the Court, not the maximalist Sunstein makes him out to be. Second, the results indicate that Justice Breyer was probably less minimalist than Justices Souter, Ginsburg, and even Stevens, a finding inconsistent with Sunstein's account. Third, the results demonstrate that most of the minimalism-maximalism distinction existed between Justices Scalia and Thomas, on the one hand, and the other seven Justices on the other, with the gradations in between somewhat uncertain based on the available data. Notwithstanding these important amendments, however, the empirical analysis provides strong support for the broad outlines of Sunstein's theory of minimalism, and the idea of metadoctrine more generally.

The analysis in this Article unfolds in five Parts. Part I describes Sunstein's theory of judicial minimalism and provides a measure of minimalism that does not require subjective coding or analysis of individual Supreme Court opinions. Part II describes the data that the analysis employed and introduces the methods by which the Article establishes measures of minimalism for the Justices. Part III presents the results of the statistical analysis for the Rehnquist Court, suggesting support for the meta-doctrinal effect Sunstein has hypothesized. Part IV interprets these results, considers alternative explanations, and addresses some potential criticisms of this measure of meta-doctrine. Part V extends the analysis to the Roberts Court, addressing the extent to which Chief Justice Roberts and Justice Alito exhibited minimalist or maximalist behavior in the 2005-2007 Terms of the Court.

1. MEASURING JUDICIAL MINIMALISM

   1. Introducing Professor Sunstein's Minimalism

      The distinguishing feature of minimalist Justices as described by Professor Sunstein is that they tend to "leave things undecided." (17) The idea of judges deliberately "leaving things undecided" is in many ways evocative of the "passive virtues" of the Bickelian tradition of judicial modesty, (18) but the account Sunstein has developed differs from other approaches to judicial modesty in two important ways. First, the theory is in large part a positive, as opposed to a purely normative, account of Supreme Court decision making. That is, although Sunstein's work has often been interpreted...