Testing minimalism: a reply.

• Author: Sunstein, Cass R.
• Position: Response to Neil S. Siegel, Michigan Law Review, vol. 103, p. 1951, 2005

Some judges are less ambitious than others; they have minimalist tendencies. Minimalists are unambitious along two dimensions. First, they seek to rule narrowly rather than broadly. In a single case, they do not wish to resolve other, related problems that might have relevant differences. They are willing to live with the costs and burdens of uncertainty, which they tend to prefer to the risks of premature resolution of difficult issues. (1) Second, minimalists seek to rule shallowly rather than deeply, in the sense that they favor arguments that do not take a stand on the foundational debates in law and politics. They prefer incompletely theorized agreements, by which diverse people, from their different perspectives, can unite behind modest rather than immodest theorizing. (2) They believe that such agreements recognize the difficulty of resolving foundational debates, and that they also allow people, including judges, to show one another a large measure of mutual respect.

In prominent cases, some judges favor minimalism, and others do not. Justice O'Connor, for example, has often shown a preference for case-by-case judgments that leave the most difficult questions for another day. (3) Justice Scalia, by contrast, is no minimalist. (4) He endorses an ambitious theory of constitutionalism--"originalism"--and he often uses that theory to decide cases. (5) Much of the time, he prefers to rule broadly rather than narrowly, because of his preference for rule-bound judgments that give clear guidance for the future. Of course minimalism and maximalism should be seen as relative rather than absolute. Justice O'Connor is a minimalist, much of the time, but she does not always follow a minimalist path, and even when she does, she does not say that her rulings are limited to people with the same initials as the parties to the particular litigation.

Justice Scalia has maximalist tendencies, but he does not try, in a single equal protection case, to resolve all imaginable equal protection cases.

I am extremely grateful to Neil Siegel for his generous and careful analysis of my claims about minimalism and the Supreme Court. (6) Siegel offers three objections to those claims. (7) First, he contends that minimalism has not been precisely defined, and that the presence of diverse and inconsistent definitions makes it difficult to test the claim that any particular court, or any particular decision, is minimalist in character. Second, Siegel claims that the most usable definition of minimalism is palpably inconsistent with Court's behavior during the 2003 term (and probably more generally). Third, he contends that minimalism, suitably defined, is unattractive, among other things because it violates the Supreme Court's roles as guide and as guardian. These are instructive objections. But the disagreement between Siegel and me is smaller (more minimal!) than it appears, and I hope that a few clarifying remarks will help to illuminate both the nature and the uses of the minimalist project.

1. MINIMALISMS

   What is minimalism? Let us begin with three distinctions. First, procedural minimalism entails an effort to limit the scope and ambition of judicial rulings; procedural minimalism should be distinguished from what I call minimalism's substance, which entails an identifiable set of substantive commitments (to, for example, fair procedures and the rule of law). (8) Second, procedural minimalism as a general category should be distinguished from the subcategory of democracy-forcing minimalism, which involves an effort to issue narrow rulings that do not mandate ultimate outcomes but that force decisions by politically accountable actors. (9) The Court might, for example, refuse to resolve a hard constitutional problem and rule more narrowly that Congress must authorize an intrusion on constitutionally sensitive interests. (10) Third, denials of certiorari and justiciability doctrines, by which the Court refuses to reach the merits, should be distinguished from narrow and incompletely theorized judgments, by which the Court resolves the merits but without much foreclosing the future. (11) When the Court denies certiorari, or holds that a decision is unreviewable, it is adopting a form of procedural minimalism, but that form is importantly different from narrow and incompletely theorized judgments. I hope that I made these distinctions adequately in earlier writings, but very possibly not; Siegel is certainly correct to insist on their importance.

   Siegel's principal concern, and mine as well, is procedural minimalism in the form of narrow and incompletely theorized rulings. Quoting from a 2004 op-ed of mine, Siegel suggests that procedural minimalism requires courts to decide "the largest issues of the day ... as narrowly as possible." (12) Hence he offers...