ONE CASE AT A TIME.

• Author: Mikva, Abner
• Position: Review

ONE CASE AT A TIME by Cass Sunstein Harvard University. Press, $29.95

The best job I ever had, in several trips to the public arena, was as a law clerk to a Supreme Court justice back in the 1950s. That Court doesn't even have a name (like the Warren Court or the Burger Court). Fred Vinson was the chief justice, but he was not there long enough nor deeply enough to get a Court named after him. With the exception of the Steel Seizure case (Youngstown Sheet & Tube v. United States), there weren't too many seminal cases that came out of my clerkship year, or of the years when Vinson and some other Truman appointees prevailed. Indeed, if it hadn't been for the strong voices of Justices Hugo Black, William O. Douglas, and Felix Frankfurter, there isn't much judicial prose that would have survived the "Vinson" Court.

To Cass Sunstein, that's not necessarily bad. Sunstein, a professor of law at the University of Chicago, is a proponent of "minimalism," which he defines as "saying no more than is necessary to justify an outcome, and leaving as much as possible undecided." Under that definition, judges do well to avoid seminal pronouncements and timeless prose: Say what you have to say to decide the case before you go on to the next dispute.

Part of what makes the book remarkable is that such an approach is not what academicians usually favor. How can you write a book about nonseminal cases? How can you excerpt an opinion that has no classy language? While Sunstein might hold up his minimalist model as one that best carries forward the judiciary's proper role in a free society, not too many judges follow that role. That's fortunate for Sunstein's profession: Law reviews and law books alike find the expansiveness of judges' writings great grist for their mills. And if that expansiveness includes some purple prose and some ad hominem comments about a fellow jurist, so much the better.

How does minimalism play out in the current Supreme Court? The Sunstein analysis makes Justice Sandra Day O'Connor the very model of what a Supreme Court justice should be. Because she is usually looking for the quietest way to resolve the case, her opinions are "minimalist." Since she avoids extremes, doctrinal or semantic, her language is calm and not likely to be deathless. Justice Antonin Scalia, on the other hand, is the activist-protagonist under the minimalist analysis. While Justice Scalia always preaches judicial restraint, his opinions range far and wide over...