The democracy-forcing Constitution.

• Author: Devins, Neal
• Position: 1999 Survey of Books Related to the Law

ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT. By Cass R. Sunstein. Cambridge: Harvard University Press. 1999. Pp. xiv, 290. $29.95.

During my freshman year in college, I was told not to judge a book by its cover. The book in question -- Lolita; the cover suggested something quite salacious. My professor explained that a soldier, who had purchased Lolita to work out some of the kinks of military life, found himself tossing the book out, proclaiming in disgust "Literature!" Well, I cannot claim precisely the same reaction to Cass Sunstein's One Case at a Time(1) (my expectations were lower than the soldier's). Nevertheless, for those expecting a lefty defense of judicial restraint, One Case at a Time is not your book. Rather, Sunstein very much wants the Supreme Court to play an active role in abortion, affirmative action, the right to die, and much more. But Sunstein's brand of activism is minimalist. Rather than look to the judiciary to settle these issues once and for all, Sunstein sees the Court as a "democracy forcing" facilitator, encouraging elected government and the people to engage in constructive constitutional dialogues.(2)

As rallying cries go, Sunstein's plea for judicial minimalism has broad appeal. After all, social conservatives still complain about judge-made rights and the left, smarting from several Rehnquist Court defeats, increasingly sees elected government as more apt to embrace their agenda than the judiciary. With both sides ready to jettison judicial activism, judicial minimalism seems an idea whose time has come.

Indeed, as Sunstein tells it, his brand of minimalism has already arrived. Proclaiming minimalism "the most striking feature of American law in the 1990s" (p. xi), Sunstein argues that the Court is cautious about imposing its views on the rest of society, "prefer[ring] to leave fundamental issues undecided" (p. x). In this way, Sunstein sees Justice Sandra Day O'Connor (and to a lesser extent Justice Anthony Kennedy) as part of a solid block of minimalist Justices (that also include Justices Breyer, Ginsburg, Souter, and Stevens).(3)

By simultaneously embracing minimalism and treating it as a fait accompli, One Case at a Time's subtitle ought to be the more emphatic The King is Dead; Long Live the King!, not the drab Judicial Minimalism on the Supreme Court. But drabness may well be the effect that Sunstein covets. By speaking in such a matter-of-fact tone, One Case at a Time suggests a bloodless revolution that has run its course. Put another way, Sunstein sees himself as the victor and One Case at a Time a retrospective manifesto that will explain the soundness of his victory.

Remarkably, Sunstein accomplishes this feat with hardly a mention of what many consider the classic minimalist tract, Alexander Bickel's The Least Dangerous Branch.(4) According to Bickel, the Supreme Court ought to avoid debilitating conflicts with elected government by making use of the "passive virtues," that is, procedural and jurisdictional delays that provide a "time lag between legislation and adjudication."(5) But for Sunstein, the question is not "when" the Court ought to resolve a constitutional dispute. The question, instead, is "how" the Court ought to make its voice heard. One Case at a Time's stated goal "is to identify and defend a distinctive form of judicial decision-making" (p. ix).

By focusing on "how" the Court ought to decide cases before it, Sunstein pays only lip service to those limits in judicial capacity that justify Court invocations of the "passive virtues." In this way, One Case at a Time pays insufficient attention to the reasons why the Supreme Court ought to craft minimalist opinions. Although Sunstein acknowledges several powerful reasons supporting judicial minimalism (inherent limits both in the Court's factfinding powers and the Court's ability to compel elected officials to implement politically unpopular decisions), One Case at a Time largely overlooks these justifications. In this way, One Case at a Time is not at all hinged to some vision of the Court's institutional strengths and weaknesses. Instead, the focus of One Case at a Time is a delineation of how a minimalist Court would tackle those issues that have divided the nation during the 1990s -- the right to die, affirmative action, government linedrawing on the basis of sex and sexual orientation, and the relationship between the First Amendment and new technologies. It also advances the highly debatable proposition that minimalist decisionmaking, in fact, will improve the quality of constitutional discourse outside the courts (pp. 25-27).

In this review, I will argue that inherent limits in judicial capacity support a more expansive vision of judicial minimalism than the one articulated by Sunstein. In particular, certiorari denials and other "passive virtues" work hand-in-glove with Sunstein's brand of minimalism. Sunstein acknowledges this but does not seriously consider how the constructive uses of the "passive virtues" will advance his project. In other words, Sunstein is too obsessed with the democracy-forcing nature of judicial review to see how his and Alexander Bickel's brand of minimalism complement each other.

But the problem with One Case at a Time is not simply that it does not go far enough. In critical respects, Sunstein's brand of minimalism goes too far. By making democratic deliberation and not some theory of what the Constitution means the lodestar of his proposal, Sunstein never considers the possibility that the Supreme Court ought to speak to basic questions of values on matters that divide the nation. While it often makes sense to defer such decisions, the Court should not put off such decisions forever. Whether the issue is abortion, affirmative action, or the death penalty, the Court's unique voice ought not to be muted simply because its members are appointed, not elected. Sunstein's brand of minimalism, however, allows for "maximalist" decisionmaking in very limited circumstances -- when such a decision would cement a preexisting societal consensus.

Constitutional dialogues between the Court, elected government, and the people go a long way towards making the Constitution more relevant and stable.(6) For these dialogues to occur, the Court cannot simply engage in minimalist decisionmaking. Rather, there are times when the Court must shape political and popular discourse -- just as there are times when the Court ought to be shaped by the world around it. Of course, the Court may sometimes opt to function as a facilitator of a dialogue between elected government and the people (as Sunstein proposes) or it may opt out of the controversy altogether (as Bickel suggests). But the Court's voice is simply too important to leave the basic questions of constitutional decisionmaking exclusively in the hands of democratic government.

In the end, Cass Sunstein's One Case at a Time is provocative, important, and helpful. But it is also incomplete. While the Supreme Court would do well to leave most fundamental questions undecided, Sunstein does not satisfactorily come to grips with the possibility that the Court ought to tackle some issues head on and duck some issues altogether.

1. MINIMALISM, THE JUDICIAL ROLE, AND THE DEMOCRATIC PROJECT

   Starting with Marbury v. Madison, the Supreme Court has been attacked for addressing issues not before it.(7) No doubt, when the Court "seek[s] to decide cases in a way that sets broad rules for the future and that also gives ambitious theoretical justifications for outcomes" (p. 9), the Court risks making costly mistakes. Witness, for example, the damage that both the Court and the nation suffered as a result of the Lochner(8) era, a period from 1905 to 1937 in which the Court infused laissez-faire economics into the due process clause to strike down roughly two hundred social and economic laws.(9) An enduring Depression made a mockery of the factual premise of Lochner's free market philosophy.(10) By 1937, populist, political, and academic attacks against the Court prompted a full-scale judicial retreat.

   How then to avoid such debacles? One Case at a Time suggests that Court decisionmaking should be both narrow and shallow. By narrow, Sunstein means that the Justices should only decide the case before them, saying nothing (if possible) about the range of cases that raise related issues (p. 10). By shallow, Sunstein calls for "incompletely theorized agreements," that is, decisional rules that do not establish basic principles so that "people who disagree on the deepest issues [can] converge" (p. 11). Needless to say, the decisions of the Lochner Court were wide and deep.

   Narrow and shallow decisionmaking, then, is "likely to make judicial errors less frequent and (above all) less damaging" (p. 4). Correspondingly, perceiving that "[f]ar more progress might be made through an empirically informed constitutional law" (p. 255), judicial minimalism affords courts an opportunity to learn more about the consequences of different rules. "[U]nintended social consequences" (p. 120), including elected government resistance to Court decisionmaking, also suggest that the Court should look before it leaps.

   At this level, Sunstein's minimalism is highly pragmatic. For example, when "the relevant facts are in flux and changing very rapidly, and the consequences of current developments are hard to foresee" (p. 174), the Court ought to exercise caution before invalidating regulating controls. For this reason, it is hard to disagree with Sunstein's call for minimalist review of the regulation of the Internet and other new communications technologies (pp. 194-201). Furthermore, lacking the powers of purse and sword, the Court must recognize that its power lies "in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary.(11) Otherwise, the Court risks both populist attacks on its...