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Looking for Cass Sunstein

1.

Professor Cass Sunstein of the Harvard Law School, who is among the most prominent and influential American academic lawyers, appears on many lists of potential nominees to the Supreme Court and it is therefore opportune that he has published a new book exploring constitutional philosophy. He is a breathtakingly prolific writer on a variety of subjects including constitutional and administrative law and the impact of behavioral psychology and economics on law. He was a colleague of President Barack Obama at the University of Chicago Law School and remains a friend; Obama consulted him on constitutional questions during the election campaign and has now appointed him administrator of the Office of Information and Regulatory Affairs.

President George W. Bush’s two Supreme Court appointees—Chief Justice John Roberts and Justice Samuel Alito—refused to discuss their own philosophies during their very unsatisfactory Senate confirmation hearings; they evaded all such questions by insisting that they could interpret and apply the Constitution without imposing their own conservative convictions about political morality.1 Sunstein rightly rejects that claim as absurd. “There is nothing,” he says, “that interpretation just is.” Every interpretive strategy is grounded in some assumption of political morality about the kind of constitution America should have.

Sunstein’s book offers few unqualified judgments about how the most controversial constitutional issues should now be decided. However, he does state his views of some of the Supreme Court’s decisions clearly enough to indicate his own inclinations. He suggests, for example, that the Court was right to avoid forcing states to permit racially mixed marriages in the 1950s; that it ruled too “broadly” in declaring abortion rights in Roe v. Wade, but that its decision is nevertheless by now too much part of our constitutional traditions to justify overruling it; that the Court’s recent ruling declaring that the Second Amendment entitles private citizens to own guns was “respectable” and is supported by a sensibly uncritical “traditionalism.” He is sympathetic to those who argue that the Court should not now require states to accept same-sex marriages, and that it should not declare the reference to God in the Pledge of Allegiance unconstitutional.

On one controversial issue he is more explicit. Justices and lawyers now disagree about whether it is right for the Court to refer to foreign judgments in its opinions, as Justices Anthony Kennedy and John Paul Stevens have done, for instance, in opinions striking down antisodomy laws and the execution of mentally retarded people. Roberts and Alito both opposed the practice in their nomination hearings and Sunstein joins them in that view because on balance, he says, referring to other countries’ conclusions will not improve our own.

Sunstein offers a persuasive general account of constitutional interpretation. He insists that a strategy of adjudication must be judged by its consequences but he concedes that justices need a further theory, beyond that pragmatism, to decide what consequences are good, and that they inevitably disagree about that further theory. He is drawn to what he calls a “perfectionist” account of how the Supreme Court should decide its cases. The justices must not invent a new constitution or ignore their own constitution’s history even if they think a new constitution or a different history would be better. They must reject any interpretation of a constitutional provision that does not adequately “fit” the text or history. But that constraint, he insists, often leaves different interpretations eligible because they all fit well enough, and justices must then choose among these by selecting the interpretation that they believe best by the standards of political morality—the interpretation that makes the Constitution, as he puts it, morally “as good as it can possibly be.”

Most of his book describes and assesses different interpretive strategies. Each must be judged by asking: In what circumstances and on what assumptions would following that strategy make the Constitution as good as it can be? The most natural strategy, given that goal, would require judges to write opinions stating what they take to be the most attractive conceptions of equality, liberty, and democracy that fit the Constitution’s text and history and then apply those conceptions to the cases before them. Sunstein cites some former justices—William Brennan and Thurgood Marshall—as apostles of this approach and calls them “visionaries.”

But he explores at greater length more modest interpretive styles that show greater deference to constitutional traditions established over many years by many people expressing their own opinions about moral and political issues. He refers to these traditions, taken together, as “a constitution of many minds” and suggests that showing more respect for that traditional constitution might constitute a “second- order” perfectionism that makes the Constitution as good as it can be in carefully limited rather than theoretically bold steps. He calls that more modest approach “minimalism”: minimalists, he says, like to decide constitutional cases “unambitiously,” through “incompletely theorized” arguments that deploy intellectually “shallow” justifications that do not appeal to any “deep” theories about liberty or equality or the proper limits of executive power.

He distinguishes two versions of minimalism. “Burkean” minimalists embrace tradition uncritically because they believe history has achieved a kind of wisdom, slowly over many years, that contemporary critics might be unable to appreciate. Some justices have adopted that form of minimalism in due process cases: they refuse to declare any form of government regulation an unconstitutional infringement of liberty if—like the prohibition against doctor-assisted suicide—that regulation is long established.2

Sunstein himself prefers what he calls “rationalist” minimalism, which asks “whether long-standing practices are actually based on sense and good faith, or instead on nonsense and prejudice.” (On the present court, he says, Justices Ruth Bader Ginsburg and Stephen Breyer are rationalist minimalists.) He is more cautious in endorsing minimalism as a general strategy than he once was.3 He describes its defects and allows that in some circumstances—when justices are very confident, for instance—a more “visionary” approach might be better because “judges should sometimes attempt a degree of depth, and need not always struggle to root their decisions in what other people already think.” He is mainly concerned, however, not to endorse any strategy but to notice the virtues and vices of each and describe the highly artificial circumstances in which each would be ideal.

2.

Minimalism has long been popular on the Supreme Court: justices are fond of saying, as Roberts did recently, that “if it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.”4 Sometimes minimal opinions that cite no broad principles are necessary for institutional reasons: when justices disagree in complex ways and no one theoretical statement of the issues would command a majority or even plurality of them. But conventional wisdom now disapproves of broad opinions even when they are possible. Minimalism often has serious costs, however, particularly when important constitutional rights are at stake, and Sunstein’s book provides a good opportunity to explore these.

The Supreme Court has two roles in American government: it is both a court of law, charged with protecting the constitutional rights of individual citizens, and also a constitutional architect whose decisions change the country’s history and affect the lives not just of those whose rights it protects but of the rest of the nation as well. From time to time these roles appear to conflict. They do so when justices believe that the Constitution, properly interpreted, grants rights that have not been recognized before and whose judicial enforcement would outrage a great many citizens. Justices face that conflict when they are first persuaded that some well-established legal practice actually violates constitutional rights and must be stopped.

Such established but constitutionally questioned practices have included segregating public schools by race, allowing prayer in public schools, forbidding mixed-race marriages, capital punishment, and failing to recognize same-sex marriages. Judges acting as wise constitutional architects are likely to have grave misgivings about altering such practices—or at least about altering them altogether at once rather than initially only in special, narrowly defined circumstances. They would prefer to use what Professor Alexander Bickel called “the passive virtues” in exercising the Court’s discretion to choose among the challenges to such laws that it agrees to consider. Before the Court finally decided to ban antimiscegenation statutes in 1967, it twice declined opportunities to do so, even though it had become apparent that a majority of the justices thought such statutes unconstitutional. For over a decade parties to mixed marriages were jailed for exercising what a majority believed were their constitutional rights.

Sunstein does not think that justices should decline to rule on unjust but popular practices, except in what he calls “rare but important” cases (like, presumably, miscegenation in the 1950s) when judicial revolution might provoke a serious and even violent backlash. He seems to prefer a more nuanced kind of minimalism in which courts are able to reach just results in the cases they consider but on “narrow” grounds defended with only “shallow” arguments.

For example, the Court might hold only that states must accord same-sex couples the tax and other benefits of marriage without declaring that they must allow such couples the status of marriage itself. Faced with demands for broad abortion rights, the Court might have contrived to take first a case that would allow it to strike down abortion prohibitions on narrower grounds; it might, for instance, have outlawed prohibitions that threaten the health of pregnant women. These strategies would allow the Court to make progress toward justice without what Sunstein calls “theoretically ambitious claims about the nature of ‘liberty’ under the due process clause, or the ideal of equality under the equal protection clause.”

Minimalism would permit the Court to develop doctrine slowly, responding to experience and public discussion in expanding or contracting its rulings later. It would allow public opinion to mature through continuing debate and experimentation in state and local politics, perhaps crystallizing emerging political trends that would allow the Court to rule more generously later with fewer social costs. Constitutional architects must think in the long term and with due attention to the timing, costs, and dislocations of their rulings.

Nevertheless a justice who embraced this nuanced minimalism instead of seeking the earliest opportunity to give his constitutional convictions their full force would, it seems to me, have failed in his other duty: not as an architect of the Constitution but as a guardian of the rights it protects. His strategic delay would have permitted thousands of citizens to be irreparably damaged because they were denied—unconstitutionally in his view—the right to control their own reproduction or the opportunity to marry someone they love of a different race or the same sex.

3.

Is this conflict between constitutional statesmanship and conscience inevitable? Sunstein explores what might seem to be a way out. Perhaps justices who form an untraditional view about what the Constitution requires should, he suggests, accept, in all humility, that the traditions they challenge actually reflect a more accurate view of what basic moral and political rights a constitution should recognize.

  1. 1

    For a full discussion of these hearings, see my book, The Supreme Court Phalanx: The Court’s New Right-Wing Bloc (New York Review Books, 2008).

  2. 2

    See Washington et al. v. Glucksberg, 521 U.S. 702 (1997); and my “Assisted Suicide: What the Court Really Said,” The New York Review, September 25, 1997.

  3. 3

    See Sunstein, Legal Reasoning and Political Conflict (Oxford University Press, 1996).

  4. 4

    Roberts, Commencement Address at Georgetown University Law Center, May 21, 2006, cited by Sunstein, p. 43.

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