A theory in search of a court, and itself: judicial minimalism at the Supreme Court bar.

• Author: Siegel, Neil S.

TABLE OF CONTENTS INTRODUCTION I. OPERATIONALIZING MINIMALISM A. What is Minimalism? B. A (Relatively) Falsifiable Definition of Minimalism II. THE REHNQUIST COURT'S RECENT RECORD A. Decisions Overlooked 1. Blakely and Crawford 2. McConnell and Sabri 3. Davey and Lane B. Decisions Analyzed Improperly 1. Not Reaching the Merits: Newdow and Padilla 2. Reaching the Merits: Rasul, Ashcroft v. ACLU, and Cheney 3. Stepping Up: Hamdi C. The Verdict III. NORMATIVE PROBLEMS A. Multiplying Decision and Error Costs: The Court as Guide B. Leaving Things to the Courts, Not the Country C. Overlapping Consensus: Why and How? D. Theory's Unavoidability E. The Court as Guardian CONCLUSION INTRODUCTION

According to the prevailing wisdom in academic public law, constitutional theory is a field that seeks to articulate and evaluate abstract accounts of the nature of the United States Constitution. Theorists offer those accounts as guides to subsequent judicial construction of constitutional provisions. (1) As typically conceived, therefore, constitutional theory tends to proceed analytically from the general to the particular; its animating idea is that correct decisions in constitutional cases presuppose theoretical commitments to the methodological principles that should guide constitutional interpretation and the substantive values such interpretation should advance. (2)

In its enthusiasm for abstraction, constitutional theory has, at times, generated accounts of judicial behavior that are removed from the realities of judicial practice. (3) Indeed, it may not be an overstatement to suggest that a basic disconnect exists between the turn to theory in legal academia and the actual practice of constitutional adjudication. At the Supreme Court bar, for example, the Justices--and thus the appellate advocates who appear before them--appear more interested in grappling with the law and facts of the case at hand than they are eager to articulate or apply grand theories about the "fundamental nature" of the Constitution.

A few academic commentators share the Court's point of view and have sought to redirect the path of academic constitutional law. Robert Post, for example, notes that constitutional theory is associated with "certain political philosophies that aspire to systematic analysis based on first principles," and he argues that constitutional theory should instead seek "to expose and clarify the principles immanent within the practice of constitutional adjudication." (4) Constitutional theory, he suggests, ought to be "always, so to speak, within our tradition and our history; it [ought to be] parasitic on the very practice it seeks to explain." (5) On this conception of the field's role, constitutional theory should endeavor to articulate, order, and assess the broader principles latent in the Supreme Court's decisions, and it should do so through relatively inductive analyses--accounts in which real constitutional cases and legal doctrines play a prominent role in formulating the theory itself.

If constitutional theory is to turn back to the context in which constitutional controversies are resolved--to the extant practice of constitutional adjudication--the field must be able to account for a basic descriptive reality. The Supreme Court, it would seem uncontroversial to suggest, assumes different postures in different cases. Sometimes, as in the historic example of Brown v. Board of Education, (6) the Justices step up and forcefully expound the fundamental law regardless of how polarizing an issue may be. At other times, as in the controversial case of Naim v. Naim, (7) the Court steps back, its voice inaudible; the Justices make the pragmatic judgment that the time is not right for the Court's intervention, even despite the obvious importance and unconstitutionality of the state action at issue. On most occasions, the Justices do speak, and they adjust the volume of their pronouncements depending upon a multitude of considerations; their opinions fall somewhere along the decisional spectrum bounded by Brown and Naim. (8)

Viewed within this legal landscape, the position advanced by one distinguished constitutional theorist is striking. Cass R. Sunstein of the University of Chicago agrees that the field has taken an untoward turn to theory:

Observers, including academic observers, tend to think that the Supreme Court should have some kind of "theory." But as a general rule, those involved in constitutional law tend be cautious about theoretical claims. For this reason, much of academic work in constitutional law has been out of touch with the actual process of constitutional interpretation, especially in the last two decades. The judicial mind naturally gravitates away from abstractions and toward close encounters with particular cases. Even in constitutional law, judges tend to use abstractions only to the extent necessary to resolve a controversy. (9) Professor Sunstein agrees, therefore, that constitutional theory should play close attention to the Justices' actual behavior in deciding cases.

At the same time, however, Professor Sunstein appears to let his own theory--minimalism--unduly color his understanding of what the Court has actually decided. An occasional qualification notwithstanding, he fails to register that the Rehnquist Court has tended to alter its role depending on the circumstances. Instead, Professor Sunstein maintains that the current Court does not resolve controversial cases broadly and deeply based on a comprehensive vision of the Constitution or area of law in question. Rather, he has argued in academic writing and in the New York Times that most of the current Justices are "minimalists" (10) in the time-honored tradition of Justice Felix Frankfurter (11) and his former law clerk, Professor Alexander Bickel. (12) Minimalists "say no more than necessary," Professor Sunstein urges, "resolv[ing] the largest issues of the day ... as narrowly as possible," and requiring "[a]bove all ... procedures that are lawful, proper and fair." (13)

In an earlier book that sets out his theory of judicial minimalism, Professor Sunstein describes the practice this way:

A minimalist court settles the case before it, but it leaves many things undecided. It is alert to the existence of reasonable disagreement in a heterogeneous society. It knows that there is much that it does not know; it is intensely aware of its own limitations. It seeks to decide cases on narrow grounds. It avoids clear rules and final resolutions. Alert to the problem of unanticipated consequences, it sees itself as part of a system of democratic deliberation; it attempts to promote the democratic ideals of participation, deliberation, and responsiveness. It allows continued space for democratic reflection from Congress and the states. It wants to accommodate new judgments about facts and values. To the extent that it can, it seeks to provide rulings that can attract support from people with diverse theoretical commitments. (14) Professor Sunstein further explains that "the practice of minimalism involves two principal features, narrowness and shallowness." (15) Along the dimension of breadth, minimalist Justices endeavor to decide the specific case before them rather than lay down broad rules that effectively decide a host of distinct, future cases. Along the dimension of depth, minimalists try to avoid unnecessary theoretical ascents, thereby enabling people who diverge on questions of basic principle to come together and agree on judicial resolutions in particular cases. (16)

Professor Sunstein's theory of judicial minimalism has both descriptive and prescriptive components. He contends that "[t]he current Supreme Court embraces minimalism," (17) and he regards this state of affairs as providing cause for celebration. For example, Professor Sunstein devotes roughly half of One Case at a Time to demonstrating--and approving--the Rehnquist Court's commitment to minimalism in navigating the legal controversies over physician-assisted suicide, affirmative action, discrimination on the basis of sexual orientation, same-sex education, and the First Amendment and new communications technologies. (18) Moreover, he asserts approvingly that the Court's October 2003 Term exemplifies his theory of judicial minimalism. He maintains that "minimalism emerged triumphant" and "was the defining theme of the court's most eagerly anticipated cases" that Term. (19) Moving from purported description to prescription, he further submits that, "with its insistent focus on procedural safeguards, minimalism has real attractions, perhaps above all in a period in which judges are forced to reconcile the demands of national security with the commitment to liberty." (20) Professor Sunstein portrays his descriptive and prescriptive claims as complementary, each prefaced on the existence of a relatively clear definition of minimalism that is capable of uncontroversial application. (21)

Those appearances, this Article submits, are illusory. The analysis that follows demonstrates a deep tension between Professor Sunstein's aspiration that minimalism serve as an empirically testable (and therefore descriptively accurate) account of the Supreme Court's work, and his ambition that minimalism provide a convincing normative theory of judicial review. (22) I begin by inquiring whether judicial minimalism accurately describes many of the most important decisions from the October 2003 Term. In order to investigate that question, however, I must give minimalism an operational definition that is empirically falsifiable. Part I derives, from among the possibilities evident in Professor Sunstein's descriptions, a definition focusing on the narrowness and shallowness of judicial decisions. This is the only version of minimalism that does not incorporate criteria so vague and contestable as to render the theory nonfalsifiable and thus empirically useless. Part II demonstrates...