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. 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 …