Ethics & Public Policy Center

Boiling the Frog

Published in National Review on October 24, 2005



Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, by Cass R. Sunstein (Basic, 281 pp., $26)

From all appearances, Cass Sunstein’s latest book must have been rushed into print to capitalize on potential book buyers’ attention to the initial Supreme Court vacancy that developed this past summer. Sunstein, a professor at the University of Chicago Law School, is by all accounts a brilliant legal scholar. But Radicals in Robes is a slapdash and highly partisan effort that does not do justice to his reputation.

It would be tempting to ridicule at length Sunstein’s assertion that the courts “have already gone so far in the directions that conservatives prefer”; his parade of potential right-wing horribles; his contrived “value-neutral definition” of judicial activism; and his many straw-man arguments, such as his claim that “those who believe that regulatory takings are a violation of the Fifth Amendment” would have difficulty explaining “why a progressive income tax . . . is constitutionally acceptable.” (Has he not noticed the Sixteenth Amendment?) Not to mention the countless gaffes, such as his reference to “Justice William Kennedy.”

But a focus on these superficial flaws would divert attention from the deeper defects in Sunstein’s underlying argument.

Sunstein sets out to “describe the four approaches that have long dominated constitutional debates.” He labels these four approaches “perfectionism,” “fundamentalism,” “majoritarianism,” and “minimalism.” Focusing especially on how fundamentalism and minimalism apply to various hot-button questions of the day, he argues that fundamentalism “would endanger both our rights and our democratic institutions” and instead promotes minimalism as “best” for “the contemporary United States.”

The labels that Sunstein attaches to his four approaches are confusing and tendentious. Perfectionists, it turns out, “want to make the Constitution the best that it can be” by reading its text “in a way that reflects their own deepest beliefs.” Perfectionism, in other words, is an alternative euphemism for the make-believe jurisprudence that invokes the “living Constitution.” Yes, the problem with Justice Brennan was that he was just too much of a perfectionist. To his credit, Sunstein rejects perfectionism and criticizes Roe v. Wade as “exemplifying perfectionism at its most extreme.”

In case you hadn’t guessed, “fundamentalism” is Sunstein’s pejorative label for originalism, the principle that the various provisions of the Constitution must be interpreted in accordance with their original meaning at the time they were ratified. Sunstein’s only reason for relabeling originalism is to load it with the onerous baggage that religious fundamentalism carries with his target audience.

Sunstein doesn’t recognize that what he calls majoritarianism isn’t a separate approach at all. Rather, it merely provides a high burden of judicial proof that would apply within an originalist (or other) framework. As Sunstein puts it, “Unless the Constitution has been plainly violated, majoritarians believe that the courts should defer to the judgments of elected representatives.” Some decisional framework outside majoritarianism is needed to determine whether “the Constitution has been plainly violated.”

What is minimalism, the approach Sunstein embraces? Minimalists “favor shallow rulings over deep ones, in the sense that they seek to avoid taking stands on the biggest and most contested questions of constitutional law.” They “attempt to reach incompletely theorized agreements [Sunstein’s emphasis] in which the most fundamental questions are left undecided.” They “celebrate the system of precedent in this spirit.” Minimalists can be liberals like Ruth Bader Ginsburg or conservatives like Sandra Day O’Connor. They are “cautious by nature” and would “nudge” rather than shake “the law toward the views of those who ratified the relevant provision of the Constitution.” As an example of minimalism in practice, Sunstein says that minimalists oppose overturning Roe: Although they “are far from sure that Roe was right,” they “are willing to accept it, not in spite of but because of their essential conservatism.”

Sunstein’s account of minimalism is a jumble. If minimalists really aim to “nudge the law toward the views of those who ratified the relevant provision of the Constitution,” then they would be originalists in principle and gradualists in their tactics. But Sunstein plainly does not regard minimalism as a gradualist version of originalism, and neither Ginsburg nor O’Connor could be classed as a minimalist if he did. For all of its claimed modesty, what respect does minimalism accord the right of American citizens to resolve issues through the democratic process if it is unwilling to overturn wrong, and judicially activist, decisions like Roe?

The incoherence of Sunstein’s account and the oddity of a constitutional theorist’s celebration of “incompletely theorized agreements” suggest that something else underlies Sunstein’s advocacy of minimalism. That “something else” is easy to discern and has two aspects. First, Sunstein advocates minimalism here and now (“for the contemporary United States”) because he is, by and large, content with the precedents in place and sees minimalism as the best defense of those precedents against originalist overturning. Second, Sunstein in fact regards minimalism, over the long run, as the tactically prudent, gradualist path to a liberal “perfectionist” rewriting of the Constitution. Thus, for example, he doesn’t want the Supreme Court to impose same-sex marriage “at this early stage” because it would be better if the courts would “act as catalysts” on gay rights.

Sunstein’s minimalism, like Ruth Bader Ginsburg’s, is better described as boil-the-frog gradualism. We American citizens are like the frog in the pot of water on the stove. If the Court turns up the heat—that is, imposes the Left’s agenda—too suddenly, we’ll jump out. But if it does so gradually, we’ll sit there in blissful ignorance until it’s too late.

Sunstein’s attack on the legitimacy of originalism is even more disturbing. Assume, Sunstein says, that the Framers were committed to originalism. Does it follow that we must be originalists? No, he says, for it “is up to us to decide whether to accept” originalism. Why, after all, “should we be governed by people long dead?”

Sunstein’s position has radical anarchistic implications that he hastens to disguise. He claims that he is not arguing that the Constitution itself should not be taken as binding, but he can argue only that we ought to take it as binding “because it is good to take it as binding.” But why can’t we instead pick and choose the parts of the Constitution that we think would be good and disregard the others? Why, indeed, can’t each of us reject the legitimacy of any law that we don’t like and to which we personally did not consent? Sunstein is so desperate to combat originalism that he would destroy the law itself in the process.

Sunstein’s “political choice” to reject originalism rests on his assertion that “it would lead to intolerable consequences.” Sunstein’s real bone of contention is with the free play that originalism would give to the democratic process. Perhaps he is right that the operation of representative government within the bounds established by the Constitution might yield some very bad results. Alas, men are not angels. But our obligation as citizens is to respect the Constitution we have (or to seek to amend it) and to work responsibly through the democratic process to promote our own understandings of just public policy.

Sunstein’s book is not devoid of merit. On a broad range of issues, he presents a serious challenge to the claim by some conservatives that originalism yields the legal position they advocate. It is, of course, an incidental virtue of originalism that it provides an objective standard for decision-making and therefore makes it possible to distinguish good originalism from bad originalism.

I also believe that a high standard of judicial proof, which Sunstein praises in his discussion of majoritarianism, should properly apply to originalist decision-making. If the Court is going to override the political process, it ought to do so only based on a convincing demonstration that the Constitution so requires, not on its mere best guess as to original meaning.

At bottom, though, nudging is not judging; and Sunstein fails to make a coherent case for minimalism over originalism.

—Mr. Whelan is president of the Ethics and Public Policy Center and a regular contributor to National Review Online’s “Bench Memos” blog on judicial nominations.

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