Do we want our judges to be heroes? Liberals have bracing and inspirational memories of judicial heroism on the Supreme Court—justices who fought for racial equality and individual autonomy against legislators who wanted to restrict women’s reproductive rights and uphold segregation. They remember judges who took on the criminal justice system in the 1960s and 1970s, securing representation for indigent defendants and protecting them from coercive interrogation. There were some who fought heroically and—for a time—successfully against the death penalty. And there were the heroes on the Court last year in Obergefell v. Hodges who held that the US Constitution forbids bans on same-sex marriage. These were justices who were prepared to keep faith with what they saw as the values of the Constitution, even if the particular application of those values was not dictated by the constitutional text.
Of course a justice’s first loyalty is to the Constitution itself. But better surely a heroic fight in defense of liberal values implicit in the document than, for example, the sort of surrender to the explicit text of Article IV that explained the abject attitude of the Court toward slavery in the nineteenth century—the greatest abuse of individual rights by far in the history of the republic, against which the Court never lifted a finger. Indeed it intervened in favor of slavery in Prigg v. Pennsylvania (1842), in which it struck down a law in a free state that had tried to prohibit slave-catching. The penchant for judicial heroism in the last sixty years is explained in large measure by memories of an earlier reticence that had led the Supreme Court all too often to defer quietly to injustice. In the second half of the twentieth century, liberal law professors hoped for many cases like Brown v. Board of Education (1954). They thought that through their students (as clerks), and through their own academic writings, they could urge upon a heroic Supreme Court the task of rebuilding the country on principles of liberty and equality.
The trouble with heroes, however, is that one man’s hero is another man’s villain. It all depends on the values that the judicial hero finds in the Constitution. Most of us agree with the values relied on in Brown; many accept the principles about private choice that were deployed heroically in Obergefell and in the great abortion case Roe v. Wade (1973). But what about the heroism of Chief Justice Roger B. Taney in Dred Scott v. Sandford (1857), who managed to discover values in the Constitution that precluded the possibility of African-Americans ever attaining citizenship? In Cass Sunstein’s new book—a study of the “personae” that Supreme Court justices may take on—Taney counts “unquestionably” as a hero, as do the justices who voted in a majority to strike down labor legislation in Lochner v. New York (1905). The late Justice Antonin Scalia, we are told, used a heroic originalism to strike down some fairly basic gun control measures in District of Columbia v. Heller (2008), and Sunstein’s category of heroism also includes the antics of the judicial majority that went out on a limb in 2000 to award the presidency to George W. Bush.
A hero is a judge who lifts up the values that he—it’s almost always a he—deems implicit in the Constitution and uses them in striking new ways to remake the laws and politics of the country. It matters not that the people and their representatives do not share the values he espouses. The people may want stricter control of crime; but the hero believes in civil liberties. Or the people may want campaign finance laws, affordable health care, and affirmative action programs; but judges who strike down these laws count as heroes because they are willing to stand up for what (in their view) the Constitution requires even when it is not what the people want. That’s the way Sunstein uses the term, and he is anxious to assure us that “hero” is certainly not always a term of approval.
Fortunately the hero is not the only character listed in Cass Sunstein’s dramatis personae. There is also the “soldier,” who is inclined to defer to the political branches. Soldiers are like the judges depicted in Robert Cover’s book Justice Accused: Antislavery and the Judicial Process (1975), judges in the antebellum period who had abolitionist sympathies but believed nevertheless that they had no choice but to uphold and defend fugitive slave laws. When he was on the Supreme Court, Oliver Wendell Holmes once said, “If my fellow citizens want to go to Hell I will help them. That’s my job.” More soberly, he acknowledged that a constitution was “made for people of fundamentally differing views” and so it would be a mistake to project his own values onto the document. He was a soldier on the court, and soldiers defer to civilian authority. It is not their job, they say, to stand up for personal values that differ from those the majority have chosen.
Then there are constitutional “mutes,” who pride themselves on avoiding difficult constitutional questions altogether. The Supreme Court has control of its own docket, and the mutes are those justices who vote against hearing appeals from lower courts, or who find technical reasons—like lack of standing—for denying litigants the right to a hearing. They display what Alexander Bickel called the passive virtues of judicial office.1 In Naim v. Naim (1955), the Supreme Court refused to hear an appeal against the upholding of a state law prohibiting racial intermarriage; it just let the decision of the Virginia Supreme Court stand without interference. It wasn’t until Loving v. Virginia (1967), more than a decade later, that the nation’s highest court was willing to break its silence. This sounds cowardly—certainly to a hero. But muteness can sometimes be a prudent and honorable position if it helps preserve the legitimacy of the Court. Maybe 1955 was not the time to tackle miscegenation laws while the country was still reeling from the impact of the school desegregation decision. “One bombshell at a time is enough,” said one of the justices.2
Finally there is the “minimalist”—cousin to the mute—who is willing to act but only to take very small steps from time to time in pursuit of constitutional values. This character eschews the bold strokes and flights of grand theory that distinguish the heroic judiciary. The minimalist relies on narrow rulings and shallow justifications, leaving as much open for the future as he or she possibly can. In the words of Felix Frankfurter, the minimalist judge thinks he or she has an obligation “to avoid putting fetters upon the future by needless pronouncements today.”3 Sunstein includes Sandra Day O’Connor and Ruth Bader Ginsburg in this category of constitutional minimalists—perhaps “incrementalists” is a kinder word—and he indicates throughout the book that if he were ever to have the opportunity, he would be a minimalist judge himself.
Is this a fruitful mode of analysis? Cass Sunstein is not the first to personify the judicial virtues (and vices). Our constitutional culture has long reserved the category “activist” as a term of abuse for judges who often interpolate their own political preferences into choices that should be determined by a more reticent reading of the Constitution. Sunstein can be read as offering a more vivid and perhaps a more serviceable terminology than “activists” versus “strict constructionists.” Certainly his personae are preferable to ideological labels like “liberal” and “conservative” or, in this age of political appointments, Democrat and Republican.
Ronald Dworkin used the name “Hercules” to refer to his idealization of the judge who has the ability to grapple with our entire legal heritage—rules, principles, rights, and values—and make of it an intelligible whole whose integrity could be appealed to for the right answer in the hardest cases. But Dworkin didn’t make a drama out of his idealization (though another judge called Hermes, who favored original intent, did make a cameo appearance in his book Law’s Empire.)4 There was nothing in Dworkin’s jurisprudence corresponding to the dueling charges and countercharges that fly back and forth among Sunstein’s personae. The soldier, whom the hero calls a coward, returns the favor with a charge of political tyranny and self-indulgence. The minimalist claims that even the soldier is too much in the grip of a large idea (deference to democracy). And the mute castigates the eagerness of all his colleagues to rush to judgment of one kind or another, rather than leave well enough alone.
“No single Persona,” says Sunstein, “and no single approach, is dictated by the founding document.” Although his own sympathies lie with the minimalist, he acknowledges that his personae are “abstract and stylized and no real-world judge ‘is’ just one or another of them.” Justice Scalia, for example, was all over the place—sometimes a good soldier in his insistence on deference to state laws allowing or disallowing same-sex marriage and sometimes a hero of originalism. “No Persona makes sense for all times and seasons,” Sunstein writes. It all depends on circumstances. “Some justices are Heroes on Tuesday (voting to ban discrimination against same-sex couples) but Soldiers on Thursday (voting to uphold the Affordable Care Act).”
I wonder whether this fluidity might not be a flaw in Sunstein’s approach. Think of it this way. If a justice is heroically committed to certain values (as opposed to simply being committed to acting heroically), then he will surely defend those values like a soldier when he finds them embodied in legislation and promote them like a hero when the legislature opposes them. There is nothing at all inconsistent in that; it is exactly what consistency about values requires. Sunstein sort of acknowledges this when he says that the choice of hero or soldier is dependent on the actions of other institutions: what a judge feels called upon to do will depend on what the president, Congress, and the state legislatures are doing. But then we might not find much illumination in heroism as such or soldiering as such.
Also, what is the relation between Sunstein’s personae and the theories of interpretation that particular judges deploy? (I ask this partly because I think that Antonin Scalia, great jurist as he was, will be remembered in the end more for the interpretive theory that he advocated and fine-tuned—the theory of close attention to text and original meaning—than for any particular outcomes he fought heroically for or against.) Constitutional Personae includes a rather banal and meandering chapter on interpretation, studded with insights like “many people believe that the Constitution must be interpreted in their preferred way” and “there are some things that interpretation just isn’t.” He says the overall aim of interpretation is to make our constitutional order better rather than worse, but he knows of course that there are many competing ways of doing this. Would it not be better just to focus on theories of interpretation and doctrines about how judges should approach their work? In principle yes, says Sunstein: “Theories first, personae second.” But still, he says, the cast of personae appeals to the imagination. And he thinks his account provides “a novel and illuminating perspective on recurring constitutional debates.”
Maybe. Psychology, to Sunstein, is as important as logic. Despite the prior authority of interpretation in establishing norms, each of the roles he describes has for some people a certain “magnetic attraction.” Judges have personalities and the enthusiasms that draw them to a particular self-image are “not easy to dislodge with argument,” whatever their theories or values.
But then why just these four personae—hero, soldier, minimalist, mute? There is nothing intuitive about Sunstein’s classification. What about the justice who fancies himself as a scholar? Or the one who defers to the executive, rather than the legislature? Lord Atkins, in his great dissent in the English wartime case of Liversidge v. Anderson (1941), defended the independence of the judiciary from the executive branch and worried about his fellow judges who proved themselves “more executive-minded than the executive” in cases involving individual liberty. We have had our share of such judges in the war against terrorism. They are not so much the soldiers as the special forces of the political branch. And what about judges who play politics (the game) rather than politics (the values)? Take, for example, entrepreneurial justices who spend their time trying to build coalitions on the Court, not to mention their opposite—the lone wolf—who persists in solitary dissent, offending his colleagues with a show of purity, rather than accede to any compromise?
As it turns out, one of the best chapters in Sunstein’s book is devoted to consensus and disagreement on the Court, and the importance of allowing or discouraging dissenting judgments. Sunstein makes powerful arguments against the familiar claim that the proliferation of dissents since the 1940s has made our law less stable and less predictable. He thinks stability is overrated and that dissent can sometimes give citizens valuable guidance by indicating the direction of thinking on the Court. “The continuing arguments among the various Personae—visible for all to see—are,” he says, “a great service to the nation.” Dissents help chasten the judicial majority, by forcing them publicly to answer objections. And by staking out his or her own ground, a dissenting judge may provide a better basis for predicting the future than an artificial and papered-over consensus.
I said that Sunstein’s preferred persona—in the event he were favored with a Supreme Court nomination—is the minimalist. Or at least he offers a “qualified endorsement” for this role. Essentially incrementalist in his thinking, a judge of this kind does not believe in large constitutional decisions, decisions that look for a drastic effect in a wide array of future cases. Nor does the minimalist think it important to reach down to some grand foundation of value for every step he takes. Better by far to take small steps, each based on reasoning that can claim support from a variety of perspectives.5
Though some justices adopt minimalism as a matter of prudence or rationality, or as a matter of what is likely to work best in the circumstances (Justice Ginsburg on gender equality for example), Sunstein sees it as essentially a conservative strategy. I don’t mean in the ideological sense of “conservative.” He takes as his model minimalist the father of small-c conservatism in British politics, Edmund Burke. Burke was an eighteenth-century parliamentarian, not a judge; but politicians can be minimalists too if they are suspicious of large-scale change. (Gerald Ford and George H.W. Bush are cited as American examples.) And one of the things that Burke extolled was the modest incrementalism of the common law—“the pride of the human intellect, which, with all its defects, redundancies, and errors, is the collected reason of ages.” Like Sunstein’s minimalist, Burke was highly suspicious of heroic flights of theoretical fancy in politics, especially when some revolutionary tries to take apart and evaluate long-established practices with nothing other than his own private stock of reason. Burke counseled “infinite caution” before we “venture upon pulling down an edifice which has answered in any tolerable degree, for ages the common purposes of society.”
Sunstein thinks he can map Burke’s reverence for political tradition onto a minimalist approach to adjudication in the American setting. Constitutional review often involves the Court in assessing the actions of the political branches. One mode of assessment is to ask whether the action in question is unprecedented. If it is not, a minimalist may be reluctant to overturn it, figuring that the precedent itself must embody some established constitutional wisdom.
So, for example, Sunstein cites some remarks of Felix Frankfurter in the 1952 “Steel Seizure Case” (Youngstown Sheet & Tube Co. v. Sawyer). When called upon to assess President Truman’s wartime seizure of steel mills, whose output was threatened by the actions of labor unions, Frankfurter did not just consider whether the abstract words of Article II of the Constitution gave Truman his power. Instead he insisted that “a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned,” commands our respect, and that there should be some serious hesitation before it is called into question by a court. Courts should not always take the opportunity to overturn established ways of doing things.
It is not a perfect fit. Edmund Burke was a much more complex character than is reflected in the passages Sunstein quotes from Reflections on the Revolution in France. There was a minimalist side to his persona, certainly. But he was also something of a hero, both for his advocacy of the American cause in the House of Commons and for his implacable campaign of impeachment against Warren Hastings’s abuse of power in India. But Sunstein admits that he is not offering an exegesis; he is just picking up on the theme of fidelity to tradition as a keynote for judicial minimalism.
How plausible is this? “Tradition” is a slippery idea, easily confused in America with a mere pattern of behavior over a decade or two. That an action has antecedents doesn’t make it a tradition. (Remember how in the war on terror we found “precedents” for the detention of unlawful combatants in one or two cases from World War II; or remember Chief Justice William Rehnquist’s identification of the Miranda warnings as a tradition in popular depictions of policing when he defended Miranda v. Arizona against challenge in 2000.6)
Sunstein might have said more too about the way heroic decisions can become entrenched as traditions. He is emphatic that Roe v. Wade was “unacceptably heroic” when it was decided in 1973, because “the Court ruled quite broadly in its first encounter with the abortion question, and it used a theory of autonomy far too expansively.” But he says nothing about Planned Parenthood v. Casey (1992), almost twenty years later, where a plurality of justices—some of whom might have been inclined to vote the other way in 1973—now defended large parts of the Roe holding on the ground that it had established itself as part of the background mentality that people bring to reproductive decisions. Not only that, but the plurality in Casey argued that a court that fails to stand up for its own past decisions risks losing its legitimacy, especially in circumstances where there is intense political pressure to overturn a precedent. According to the decision in Casey:
The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete…. A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today.
These are grand words. But are they the words of a hero or a minimalist? Justice Scalia thought they were appalling:
I cannot agree with, indeed I am appalled by, the Court’s suggestion that the decision whether to stand by an erroneous constitutional decision must be strongly influenced—against overruling, no less—by the substantial and continuing public opposition the decision has generated.
Is this Scalia the soldier opposing heroism or Scalia the hero opposing the minimalism of the justices in Casey? We can’t tell, because Sunstein does not say nearly enough about minimalism as it applies to the Court’s own precedents.
Sunstein makes his Burkeian minimalist slipperier still when he says that maybe we should be willing to question established practices when they prove patently unjust. It turns out that even Brown v. Board of Education could have Burkeian support “insofar as it could be seen not as a bolt from the blue, but as the culmination of a long series of decisions and as reflective of a growing social consensus.” If a Burkeian minimalist can end up supporting such an “iconic heroic decision,” then I worry that there may not all be that much to be learned from Sunstein’s thinly drawn and flexible personae.
As I’ve said already, Sunstein is quite candid about the dependence of his various personae on the judicial and historical settings in which they act. But it seems that the depiction of any one of them will also vary depending on the observer’s point of view. He is also engagingly frank about the fact that Burkeian minimalism is in some respects un-American. Thomas Jefferson did not accept that future generations must defer to the wisdom of the Framers: future generations have the advantage of experience, Jefferson said in 1816, “and forty years of experience in government is worth a century of book-reading.” Beyond that, the Burkeian approach is downright inconsistent with some of our traditions: “The equal protection clause was self-consciously designed as an attack on longstanding practices; it reflects a principle that was not rooted in traditions at all.”
For a very short book, Constitutional Personae has all sorts of treasures in it. Its classifications are illuminating even when they do not work as classifications. They certainly don’t obscure other aspects of Sunstein’s impressive command of our constitutional history and his insights into the Supreme Court as an institution. And though I find that Sunstein’s classification of personae raises many problems, I have a sneaking suspicion that he might be right when he says at the end of the book that people are drawn as much to a dramatic role as to a set of doctrines: “In politics and law, as in ordinary life, the rules of attraction, rather than the arguments, often end up running the show.”
See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Bobbs-Merrill, 1962). ↩
The remark is noted in Walter F. Murphy, Elements of Judicial Strategy (University of Chicago Press, 1964), p. 193, and attributed to Associate Justice Tom Clark by Lucas A. Powe, Jr. in The Warren Court and American Politics (Harvard University Press, 2000), p. 72. ↩
Justice Frankfurter in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). ↩
Ronald Dworkin, Law’s Empire (Belknap Press/Harvard University Press, 1986), pp. 239–254 (Hercules) and pp. 317–337 (Hermes). ↩
Sunstein has treated this theme before in “Incompletely Theorized Agreements in Constitutional Law,” Social Research, Vol. 74, No. 1 (Spring 2007). ↩
Dickerson v. United States (2000): “Miranda has become embedded in routine police practice to the point where the warnings that Miranda requires the police to provide a suspect during custodial interrogation have become part of the national culture.” ↩