Conservatives skewered the Harriet Miers nomination for the U.S. Supreme Court because they feared they lacked knowledge of her positions on various issues important to them. Although predating the Miers nomination, Cass R. Sunstein’s Radicals in Robes attempts to elevate the discourse over federal judges beyond litmus tests and paper trails to analysis of theories of constitutional interpretation.
Sunstein, who teaches at the University of Chicago Law School, identifies four major theories of constitutional interpretation and then analyzes many of the today’s hot button issues, as well as traditional constitutional principles, through the prism of the leading theories. Sunstein ultimately sees a division not between activist and non-activist judges, strict constructions and loose constructionists or even liberals versus conservatives. To him, the current debate over how to interpret the U.s. Constitution is framed in the context of a division between “fundamentalism” and “minimalism.”
Fundamentalist constitutional theory is based on the idea that the proper approach to constitutional law is discerning and applying the intent behind the Constitution when it was ratified in 1789, the intent behind the Bill of Rights when it was ratified in 1791 or when the Fourteenth Amendment (through which much of the Bill of Rights has been applied to the states) was adopted in 1868. This approach is most often advocated by conservatives. In particular, Sunstein associates it with a movement known as the Constitution in Exile. Proponents of that view contend that decisions dating from the 1930s have erased the original intent behind the Constitution and that its true meaning needs to be restored.
At the other end of the spectrum is perfectionism, a position perhaps most often associated with liberals. Perfectionists don’t doubt the binding nature of the language in the Constitution. They believe, however, that it should be interpreted in broad terms so that the ideals it expresses are fully realized. In other words, perfectionist judges believe their obligation is to make the law “better.” Sunstein correctly notes that just as adoption of the fundamentalist approach could produce sweeping changes in current law, one of the problems with perfectionism is that it too can result in expansive change that goes beyond what any particular case calls for. He points to both Brown v. Board of Education and Roe v. Wade as examples of decisions that are earthquakes in constitutional analysis by laying down broad rules of general application rather than nudging the law along by narrowly addressing the issues presented and allowing the law to develop naturally.
A third theory, and the one least used today, is majoritarianism. Majoritarians believe the other branches of government tend to express the majority view of the country and that the majority view should impact constitutional interpretation. Therefore, they tend to defer to the other branches of government and are willing to uphold the actions of those branches unless they clearly violate the Constitution.
The fourth theory—and the one Sunstein supports—is minimalism. Minimalists believe judges and courts should do no more than necessary to decide a case. According to Sunstein, minimalists try to avoid the deep core questions like the role of religion in society. Instead, they believe “a free society makes it possible for people to agree when agreement is necessary, and unnecessary to agree when agreement is impossible.” In other words, while a certain approach may be needed to resolve the issues presented in a particular case, use of that approach need not require full agreement on its foundations. Thus, the law grows and changes incrementally by resolving only the problem or issue presented rather than through broad pronouncements establishing resolutions for other problems not presented by the particular case.
Sunstein believes these theories show that terms like “activist judge,” now a favorite epitaph of conservatives, serve no useful purpose. He contends activism exists on both sides of the political spectrum. For example, some of the positions taken by the two leading proponents of fundamentalism on the supreme court—Justices Antonin Scalia and Clarence Thomas—would overturn years of established law and precedent.In fact, Sunstein points out that the Rehnquist Court struck down decisions of Congress on more than 30 occasions, even provisions of legislation that had strong majority support in Congress. If judicial activism is engaging in lawmaking by judicial decree, the Rehnquist Court fits that label.
Sunstein applies fundamentalist, minimalist and perfectionist analysis to a variety of issues facing the country, including such current ones as abortion and the right to privacy, affirmative action, same-sex marriage and presidential power in the so-called war on terror. His intent is to show how each camp would address the issue and the likely or potential outcome from each, In so doing, Sunstein is blisteringly critical of fundamentalism, believes perfectionism poses its own dangers and is a strong advocate of minimalism. He points out that the ultimate conclusions fundamentalism produces are often at odds with what we today view as traditional, established law. Radicals in Robes also accuses fundamentalists of inconsistency. For example, while willing to invoke “original intent” to advocate certain constitutional positions, they discard or overlook constitutional history if the “original intent” is inconvenient or fatal to the result they hope to achieve, such as the debate over whether the Second Amendment actually creates an individual right to gun ownership.
Sunstein’s bottom line is that fundamentalism threatens the integrity of the legal system and presents a potential revolution in American constitutional law that is largely unsupported. As a result, he believes the real Radicals in Robes are fundamentalist judges appointed to the bench by the Reagan, Bush I and Bush II administrations. The book ultimately amounts to critiquing that school and bolstering minimalism.
To a great extent, Sunstein’s criticism of fundamentalism and advocacy of minimalism is a fair assessment. Should the views of the 18th and 19th century really provide the basis of resolving issues that confront modern society and were wholly unimaginable at the time the Constitution was approved? As Sunstein points out, under such an approach the federal government could discriminate on the basis of race because, by its terms, the Fourteenth Amendment applies only to the states, not the national government. Likewise, 18th century ratifiers certainly did not have any “original intent” that the Constitution afforded women a right to vote.
Aside from those who want to ignore, upset or revolutionize established law and precedent, minimalism makes sense. There is little reason for a court to make wide-ranging pronouncements when a case can be decided on narrow grounds that address only the particular issues presented. Unlike science, law is not an area that should necessary grow by leaps and bounds. Litigants and society are both better served by incremental analysis and application of existing law.
How does all this relate to Miers and whomever replaces her as the nominee? That individual will replace Sandra Day O’Connor, almost universally considered the swing vote on the Supreme Court over the last several years. Sunstein points out that, while a conservative, her decisions indicate she would fall in the minimalist camp. Given Sunstein’s belief that minimalism is to be far preferred over fundamentalism or the other theories of constitutional interpretation, he also believes that theory to which any federal judicial nominee adheres is important to the future of the country. Sunstein also wisely points out that while it is easiest to focus on the Supreme Court, all levels of the federal judiciary are called upon to interpret and make law each day.
If there is a failing in Sunstein’s work, it is that he may too closely and consistently wed fundamentalists with advocates of the positions urged by the extreme right of the Republican Party—overturning Roe v. Wade and other decisions recognizing a right of privacy, narrowly limiting federal regulators, abolishing affirmative action, invalidating gun control laws, and reducing or removing Establishment Clause restrictions on state governments. While the vast majority of fundamentalists undoubtedly tend toward those views, Sunstein himself may at times cut too broad a swath by viewing fundamentalists and the extreme right as working hand in glove. The possibility certainly exists that not all fundamentalists are wholly within the Constitution in Exile camp or that they agree with the full agenda of the extreme right.
Additionally, although Sunstein indicates that the Republican presidents of the last 25 years have put fundamentalists on the bench, there is little, if any, quantitative analysis of that assertion. While he holds up Scalia and Thomas—appointed by Regan and Bush I, respectively—as leading fundamentalist, there is no analysis of where the judges sitting on the federal district courts and courts of appeals fall in the four theories. Similarly, there is no discussion of where in this range of constitutional interpretation to place the various appointees of the Clinton Administration or comparison of the number of judges in each category appointed by the four administrations.
Despite these flaws, Sunstein’s work is relevant and useful. Rather than interest groups and politicians scouring paper trails for positions or statements on particular issues, we may be better served by analysis of which of the four theories of interpretation a judicial nominee leans. Those theories may be a better guide to whether our constitutional future will be determined by radicals of either stripe or those who believe the law should evolve by limited steps as American society faces new and different issues.