Politics

The Age of Mixed Results

By

One Case at a Time: Judicial Minimalism on the Supreme Court

by Cass R. Sunstein

(Harvard University Press, 290 pp., $29.95)

I.

America now is a society addicted to legalism that has lost its faith in legal argument. The impeachment of Bill Clinton was only the most visible manifestation of this paradox. Both Democrats and Republicans professed a rhetorical commitment to the rule of law while revealing a deep pessimism about the ability of courts, legislatures, or even citizens to transcend their biases and to converge, through deliberation, on impartial and democratically acceptable outcomes. The simplistic Supreme Court decisions that precipitated the impeachment--in particular Morrison v. Olson, upholding the Independent Counsel law, and Jones v. Clinton, denying the president temporary immunity from civil suits while in office--were based on the principle that the president should not be above the law, a principle repeatedly invoked by both parties in the House and the Senate; but the content of the Congressional deliberations revealed an unsettling cynicism about the malleability of legal argument. Both sides embraced interpretive methodologies that they had rejected on previous occasions, as the president's accusers praised the virtues of a living Constitution while the president's defenders insisted on the importance of original understanding. Perhaps most jarringly, after declining to engage each other's arguments, the two parties in the House and the Senate divided more or less on party lines. The partisan character of the votes on the articles of impeachment seemed to reinforce the partisan character of law itself.

There is nothing new, of course, about the notion that judges and jurors often find it hard to transcend their own biases, and that courts should hesitate, for this reason, to usurp the decisions of the democratically accountable political branches. This has been the refrain of political and academic critics of the Warren Court since the 1950s, and it has now transformed our legal culture. But then something odd happened. At the very moment that judges began to agree about the virtues of deference to the political branches, legal scholars began to wonder whether the political branches deserve all that much deference after all.

Public choice theory called into question the claim that self-interested legislators were well equipped to reflect the will of the majority. The New Chicago School of Social Norms pointed to the ways in which norms can influence behavior more effectively than law, and to the ways in which norms and law can influence each other, sometimes perversely. Critical race theory and feminist theory insisted that objective truth is unknowable because we are all prisoners of racially, sexually, and economically determined perspectives that can never be transcended through reasoned deliberation. (And contemporary pragmatists added to the rampantly subjectivist atmosphere.) Scholars of the popular initiative process pointed to the ways in which initiatives can be captured by well-financed special interest groups, rather than reflecting popular will. And an explosion of federal lawmaking during the past decade raised questions about whether Congress deserved deference because of its purported ability to transcend factionalism, as it federalized great patches of regulatory authority, often for the cheapest symbolic reasons, that had previously been left to the states.

The new skepticism about the relationship between majoritarianism and democracy poses a daunting challenge for constitutional theorists. Which lawmaking authority deserves deference in an age that has lost its confidence in the deliberative powers not only of the courts, but also of the political branches and the people themselves? This is the challenge that Cass R. Sunstein sets out to answer. With his new book, Sunstein joins a distinguished line of liberal constitutional theorists who have defended the democratic value of judicial modesty. Although some of his earlier work had embraced less diffident visions of constitutional interpretation, he now places himself squarely in the tradition of Felix Frankfurter and his disciple Alexander Bickel, who famously advocated the "passive virtues" of declining to decide cases in certain circumstances so as to promote democratic debate. Sunstein's prescription is more comprehensive than Bickel's, which makes it uniquely well-suited to an age that has lost its constitutional faith.

Like the Unitarian who believes that there is at most one God, Sunstein urges the Supreme Court to be self-mortifying about the limits of its knowledge. It should refuse to decide certain cases, and agree to decide other cases as narrowly as possible, so as to preserve spaces for contested issues to be debated democratically. But Sunstein's interpretive approach, which he calls "judicial minimalism," is not a recipe for deference to the people and their representatives in all circumstances. Although minimalists " disfavor broad rules that would draw a range of democratically enacted legislation in question," Sunstein writes, they "are not committed to majority rule in all contexts. Majoritarianism is itself a form of maximalism. " Sunstein argues for a jurisprudence of mixed results, counseling courts to strike down laws in some circumstances and to uphold them in others, but always to be guided by what he calls "democracy-promoting minimalism."

It is rare that a work of constitutional theory so precisely expresses, and so enthusiastically celebrates, the mood of a particular Supreme Court. For nearly forty years, politicians and legal scholars have focused on different responses to the perceived over-expansiveness and lack of humility that characterized the Warren Court. The great constitutional theorists of the previous generation, from Alexander Bickel to John Hart Ely, displayed a critical tone toward the justices of their era that combined theoretical dismay with barely concealed contempt. Sunstein, by contrast, is Whiggish in every way. He has warm praise for "several of the justices, most notably O'Connor (but also Justices Breyer, Ginsburg, Stevens, and Souter), who are cautious about broad rulings and ambitious pronouncements. Usually, they like to decide cases on the narrowest possible grounds." Sunstein contrasts these heroes with the villains of his story, Justices Scalia and Thomas and Chief Justice Rehnquist, who "think that it is important for the Court to lay down clear, bright-line rules, producing stability and clarity in the law." No other scholar has captured the temper of the current majority as neatly as Sunstein, nor has anyone else attempted to provide a theoretical justification for what other observers took to be ad-hockery or improvisation. For these reasons, Sunstein's book deserves close attention.

 

II.

Sunstein wants to reformulate the terms of constitutional debate by focusing on minimalism and maximalism rather than on activism and restraint. Judicial restraint is a notoriously imprecise term. It can include a range of deferential judicial behavior, from deference to legislatures to deference to constitutional text or history or precedent, all of which may point in very different directions. The justices that Sunstein criticizes as well as those that he praises have identified themselves at various times as acolytes of judicial restraint, but it is hard to consider the Rehnquist Court as a whole to be a restrained Court. Although it is less willing than its predecessors to create and to expand broad rights of personal autonomy--as demonstrated by its refusal to recognize a sweeping right to die--the Rehnquist Court is far more willing to strike down federal statutes as violations of federalism or the separation of powers. (In its 1997 term alone, it struck down four federal laws; and when it invalidated the line-item veto last year, its attitude toward Congress could only be called cavalier.) Sunstein recognizes that the most distinctive quality of the Rehnquist Court is not its commitment to restraint but its aversion to philosophy and to ambitious theorizing, its preference for saying as little as possible, its instinct for consensus rather than confrontation (a surprising number of important opinions are unanimous), its proclivity for handing down bold rulings without bothering to agree on very deep reasons to explain its decisions.

Is this aversion to deep reason-giving something to be celebrated, as Sunstein suggests, or is it a form of judicial self-aggrandizement masquerading as modesty? Sunstein models his theory on Bickel's "passive virtues," which Bickel defined as the use of techniques of judicial avoidance to delay decisions in important cases that might be further clarified by democratic debate. But for the justices to extend Bickel's notion of "passive virtues" to a judicial opinion itself, refusing to say what they think about a constitutional issue after they have promised to do so, is a peculiarly coy vision of the judicial role. It seems not so much passive as passive- aggressive. Sunstein persuasively argues that the most effective judicial decisions are those that preempt democratic deliberation as little as possible, but it is hard to see how citizens can deliberate meaningfully about constitutional issues when the Court refuses to share its own views about the rules of debate.

The fundamental characteristic of judicial minimalism, as Sunstein defines it, is a commitment to leaving important questions unresolved. As Sunstein puts it:

A minimalist court settles the case before it, but it leaves many things undecided. It is alert to the existence of reasonable disagreement in a heterogeneous society. It knows that there is much that it does not know; it is intensely aware of its own limitations. It seeks to decide cases on narrow grounds. It avoids clear rules and final resolutions. Alert to the problem of unanticipated consequences, it sees itself as part of a system of democratic deliberation; it attempts to promote the democratic ideals of participation, deliberation, and responsiveness. It allows continued space for democratic reflection from Congress and the states. It wants to accommodate new judgments about facts and values. To the extent that it can, it seeks to provide rulings that can attract support from people with diverse theoretical commitments.

Encouraging judges to preserve space for democratic deliberation, Sunstein provides a series of distinctions. First, he argues that minimalist decisions should be narrow rather than broad--that is, minimalist justices should try to decide the case at hand without laying down a sweeping rule that will bind lower courts and legislatures in similar cases. By refusing to tie the hands of the political branches and the lower courts, Sunstein argues, the Supreme Court can preserve space for democratic disagreement.

And Sunstein further argues that minimalist decisions should be shallow rather than deep. They should lay down a rule in the case at hand without giving an ambitious theoretical account of their reasons for doing so. By avoiding foundational questions, and converging on "incompletely theorized agreements," courts can "make it unnecessary for people to agree when agreement is impossible," again preserving space for democratic debate.

As an example of a decision that is narrow and deep, Sunstein points to the Virginia Military Institute case, where the Court struck down the all-male admissions policy at VMI on the grounds that the Constitution prohibits gender-based stereotypes, while refusing to say whether or not single-sex education was or was not constitutional in other circumstances. As an example of a narrow but shallow decision, he points to Romer v. Evans, where the Court invalidated an anti-gay rights amendment in Colorado without clearly explaining why it was doing so or what it thought about different forms of discrimination based on sexual orientation. (I am not sure that I have ever read another book in which "narrow" and "shallow" are terms of praise.) Sunstein contrasts these decisions with the decisions of the Warren Court that he considers wide and deep, such as Brown v. Board of Education, invalidating school segregation, and Reynolds v. Simms, declaring the constitutional principle of one-man-one-vote; and with a wide and shallow decision such as Roe v. Wade, which struck down abortion restrictions in almost all circumstances without giving an intelligible reason why it was doing so.

Sunstein's matrix of categories is certainly provocative, but it seems just as malleable as the categories of activism and restraint that it wishes to usurp. Whether a decision is characterized as narrow or shallow, or deep or broad, seems entirely in the eye of the beholder. Sunstein lists Brown as an example of a wide and deep opinion, but it might just as well be seen as a narrow and shallow one. After all, the Court declared segregation in public schools unconstitutional without explaining very clearly why it was doing so, and without saying anything about the constitutionality of different forms of state-sponsored segregation (on public transportation, for example). The indeterminacy of Sunstein's categories calls their broader utility into question.

Read as a shallow decision, moreover, Brown is a good example of the chaos that can result when the Supreme Court refuses to lay down clear and easily understood rules. The result of the Court's refusal to explain whether its reasoning extended beyond schools was to create confusion in the lower courts and legislatures, which, in the years following Brown, were deeply divided about the constitutionality of segregation in public swimming pools, golf courses, and other public facilities. In a series of terse and unanimous opinions, unaccompanied by any reasons at all, the Supreme Court extended the narrow holding of Brown, striking down each of these further examples of public segregation one by one, but again without articulating a clear principle to justify its decisions.

Owing to the unreasoned quality of Brown, moreover, supporters of segregation were able to exploit its logical flaws. In 1963, for example, a Southern judge held a trial about the empirical validity of Kenneth Clark's studies of the self-esteem of African American children, as reflected in their reaction to white and black dolls. If, instead of focusing on the " feeling of inferiority" that segregation provoked in black children, the Court had issued an opinion that was genuinely deep--holding, say, that all state-sponsored racial segregation is unconstitutional because it is inherently caste-affirming--then lower courts and legislatures might have been less quick, in the wake of Brown, to take advantage of loopholes in the Court's terse commands, such as the requirement to implement desegregation "with all deliberate speed."

It is possible, of course, that no matter how broadly or deeply the Brown opinion had been written, it would have provoked the same resistance from segregationists and the same support from integrationists. In his pathbreaking study The Hollow Hope, Gerald Rosenberg has suggested that the Brown decision had little influence on the immediate progress of desegregation in America; it was not until political opinion against segregation had congealed during the civil rights movement of the 1960s that the public sphere was integrated in a meaningful way. If Rosenberg's thesis is correct, as Sunstein notes, then Brown might actually be seen not as a maximalist decision at all, but a "form of democracy-promoting minimalism," opening a dialogue with the political branches that remained unsettled for more than a decade. Yet Sunstein presents no empirical evidence about the degree to which legislatures or citizens may respond differently to shallow as opposed to deep decisions, and so it is hard to say with confidence whether or not a deep opinion can, in fact, provoke more democratic deliberation than an opaque one or a shallow one can.

Since the subset of lawyers who regularly read Supreme Court opinions after they have graduated from law school is tiny, and the subset of non-lawyers who read Supreme Court opinions at any point in their lives is far smaller, it would not be surprising if the shallowness or the depth of an opinion has little influence on the degree to which it influences political debate. (Most citizens get their knowledge of Supreme Court opinions from television, which suggests that Sunstein's central premise that the courts can participate in an informed dialogue with citizens may be idealistic.) Yet shallow opinions seem especially unlikely to provoke reasoned deliberation, because they give citizens and legislators so little to deliberate about, except to try to predict the future votes of the justices who produced them. Sunstein's strongest point about Brown is that it represented the culmination of decades of incremental victories in the lower courts; and that the Supreme Court would do well, in cases involving social issues about which there is profound division, to follow the opinions of lower courts and citizens rather than to lead them. Yet this is an argument for delaying important decisions, not for refusing to give coherent reasons in cases that the Court has finally agreed to decide.

 

III.

If the supreme court were the only court in the nation, it might be able to embrace a highly personalized, "the law is what we say it is" jurisprudence, without worrying about giving very clear reasons for why it is doing so, and without tipping its hand about how it is likely to decide similar cases in the future. In the American system, however, the Supreme Court sits at the top of a pyramid of inferior federal courts, all of which are bound to apply its decisions uniformly throughout the nation. And lower courts, when faced with a narrow, shallow Supreme Court decision of the kind that Sunstein praises, may literally be at a loss about what the opinion means. This is more likely to promote chaos than reasoned deliberation.

Sunstein acknowledges that minimalism may shift the burden of making hard decisions from the Supreme Court to lower courts: "A court that economizes on decision costs for itself may in the process 'export' decision costs to other people, including litigants and judges in subsequent cases who must give content to the law," he writes. For this reason, he stresses that when " planning" by lower courts and citizens is important, minimalism may be inappropriate. But isn't "planning" important in every case that the Supreme Court agrees to hear? In an age in which the Supreme Court is deciding fewer and fewer cases, and selecting the handful of cases that it agrees to hear by looking for areas of disagreement among the lower courts, it seems inefficient and even irresponsible for the justices to refuse to lay down clear rules in the few cases in which they have promised to do so.

Surely it is hard to argue that the legal questions in these cases would benefit from further debate in the lower courts, since it is the existence of vigorous disagreement in the lower courts that led the Supreme Court to agree to hear the case in the first place. When the Supreme Court issues terse opinions whose reasoning is hard to discern, it compounds the confusion of inferior courts in precisely those cases where the relevant actors are pleading for a clear resolution. The result is a national exercise in clairvoyance, as lower courts, citizens, and legislatures spend great energy and expense trying to puzzle through problems that the Supreme Court promised but then refused to resolve.

By embracing shallowness as a judicial virtue, Sunstein is advocating a version of the personalized jurisprudence of Sandra Day O'Connor; but O'Connorism is hardly a recipe for rich public debate. Consider the Voting Rights cases. In a series of opinions beginning with Shaw v. Reno in 1993, O'Connor has cast tie-breaking votes to strike down a series of voting districts constructed on the basis of race. At the same time, O'Connor has taken care to stress that not all majority-minority districts are unconstitutional--going so far in one case as to write a separate concurrence to her own opinion that seemed to deny its logical implications.

Since O'Connor has refused to reveal the rules or the standards that, in her view, distinguish constitutional from unconstitutional districts, the process of redistricting in the wake of the 1990 census has largely become a exercise in trying to read Justice O'Connor's mind. This has dramatically increased her power, but it has wreaked havoc on electoral maps across the country. Far from promoting reasoned deliberation, O'Connorism promotes its antithesis, entangling individual justices in the political process to the most minute and confusing degree. Justice Potter Stewart's famous test for obscenity--"I know it when I see it"--was based on the conviction that there was a social consensus about what is obscene, but that it reflected too many legal and moral permutations to be captured in a single judicial rule. O'Connor's focus on "oddly shaped districts" is far more self-aggrandizing, because it rests on no broader aesthetic than the sensibility of the individual justice herself.

Sunstein recognizes the democratic virtues of deep opinions as opposed to shallow ones--they help to promote the rule of law, by limiting judicial discretion and improving predictability--but still he defends shallow decisions, on the grounds that they permit citizens with "diverse theoretical commitments" to converge around outcomes when they are unable to converge around abstract principles. Yet the voting rights experiment calls even that modest claim into question. An incompletely theorized case such as Shaw v. Reno gives citizens no basis for knowing what, precisely, they are being asked to accept, beyond the unsatisfying claim that a voting district is unconstitutional if Justice O'Connor thinks it is. The broad and deep decisions of the Warren Court obviously thwarted democracy, by forbidding the legislature from acting in all sorts of spheres. But O'Connor's minimalism thwarts democracy in a different way: by personalizing constitutional interpretation in a way that is hardly consistent with reasoned argument.

The right-to-die cases offer another example of the hazards of O'Connorism. In 1997, all nine justices agreed that the Constitution does not protect an open-ended right to physician-assisted suicide in all circumstances. But the Court divided sharply on the question of whether a competent person experiencing great pain might have the right to hasten his imminent death. Four justices, led by Chief Justice Rehnquist, would have left this question entirely up to the representatives and the citizens of the states. In what Sunstein calls an "ambitious, emphatically nonminimalist opinion," Rehnquist would limit the Court's discretion to recognize new fundamental rights under the due process clause of the Constitution to those rights that are deeply rooted in longstanding traditions and practices.

But why is Rehnquist's opinion "emphatically nonminimalist"? The conventional tools of legal interpretation--text, history, tradition, constitutional structure, and judicial precedent--all fail to support the claim that there is a fundamental right to physician-assisted suicide, even to alleviate great pain when death is imminent. By recognizing the weakness of the argument for a judicially created right to die, and by removing the courts from the debate entirely, Rehnquist's approach would seem to preserve the largest space for democratic deliberation.

Yet Sunstein prefers the far more elusive approach of Justice O'Connor, who stressed that the Court had not decided whether or not a competent person experiencing great suffering might have a constitutional right to control the circumstances of imminent death. "O'Connor's opinion speaks for a group of justices who are not quite clear on how to handle fundamental rights under the due process clause and who want to leave the hardest and most contested issues for continuing democratic, and judicial, debate," Sunstein writes. But O'Connor characteristically gave no hints about what sort of constitutional arguments might persuade her to decide this question one way or another, and so it is impossible to say whether or not she was justified in refusing to tip her hand.

If o'connor is waiting for further facts to illuminate some aspect of the constitutional debate, then her hesitation might be justified. In his own separate opinion, Justice Souter suggests that more empirical evidence, especially about the experience of the Netherlands, might cast light on the question of whether the line between assisted suicide and voluntary or involuntary euthanasia could become "porous" if the Court were to recognize a limited right to die for terminally ill people who are experiencing great pain. Still, empirical evidence is not the end of the matter. It may illuminate whether or not the state has a sufficiently strong interest in guarding against medical mistakes to override a fundamental right of terminally ill patients to end their suffering, but it casts little light on the question of whether or not the right exists in the first place. That is a question of judicial philosophy, of argument and interpretation.

Sunstein, like O'Connor, says that the Court should assume that the right to physician-assisted suicide is "presumptively protected" in medically hopeless cases, but should also hold that the state's interests are sufficiently strong to override it. Why is this opaque holding more " minimalist" than Rehnquist's far less intrusive alternative? Since neither Sunstein nor O'Connor explains the reasons that might persuade the Court to recognize a presumptive right to die under medically hopeless conditions, all this has the feel of a fiat, and it raises the specter that the Court might create other unenumerated rights in the future with similarly thin support in text, history, and precedent. Wasn't it precisely this threat of an untethered court inventing constitutional rights without coherent explanations that the minimalist project was designed to avoid? Sunstein stresses that "there is a big difference between a refusal to give an ambitious argument for an outcome and a refusal to give any reasons at all," but the opinions that he praises sometimes seem to verge on reasonlessness in their refusal to reveal what the justices could be thinking.

In a powerful article called "Judges as Advicegivers," which appeared in the Stanford Law Review in 1998, Neal Katyal argues that the best way for courts to achieve Sunstein's goal--avoiding interference with the political branches and encouraging legislators to settle constitutional issues politically rather than judicially--is to write narrow but deep opinions. That is, opinions explaining their carefully confined holdings with a generous reliance upon dicta, or non-binding advice, that provide clear guidance to legislators and citizens about the reasons and the assumptions behind a decision. The narrowness of the holding would ensure that democratic prerogatives are preserved across a range of issues, and the clear advice would permit the political branches to make informed decisions about the constitutional limits on their powers, rather than trying to read judicial tea leaves.

Thus Katyal argues, about Clinton v. Jones, that the Court could have written a narrow opinion siding with Jones rather than a hyperbolic opinion declaring that text and history provide "no substantial support" for claims of presidential immunity. After acknowledging the closeness and uncertainty of the question, he continues, the Court could have declined to create the presidential immunity that Clinton requested, on the grounds that a constitutional solution to the problem would freeze the manner permanently. But the opinion could have included clarifying dicta, informing Congress about the potential constitutional problems, and strongly suggesting that a legislative grant of immunity would be the most appropriate way to address them.

With characteristic fair-mindedness, Sunstein acknowledges the arguments for judicial depth. By refusing to give intelligible reasons for their decisions, he notes, justices run the risk that litigants in similar cases will not receive equal treatment by lower courts. The main objection that he raises to a deep decision is that "judges may not be good at ambitious theorizing, and may hence blunder--a special problem when they are invalidating legislation." Still, it is not clear that judges are any better at less ambitious theorizing, which may require a subtlety and a complexity that more abstract arguments do not require. Consider the Court's opinion in Romer v. Evans, the case striking down Colorado's anti-gay rights amendment. Justice Kennedy's opinion for the Court, Sunstein suggests, is narrow and shallow, cobbling together clashing theories without explaining very clearly the relationship between them. The most dramatic silence in the opinion is its failure to address the fate of Bowers v. Hardwick, the decision a decade earlier that had upheld a Georgia anti-sodomy statute.

The most shallow way to read Kennedy's opinion is to say that Romer and Bowers can co-exist side by side. Even assuming, for the sake of argument, that it is permissible for a state to ban sodomy, so as to discourage conduct that citizens think is immoral, Kennedy seemed to suggest that prohibiting gays and lesbians from bringing any "claim of discrimination" against the state of Colorado was not a rational way of discouraging homosexual conduct. The sheer breadth of the amendment, as Kennedy put it, "seems inexplicable by anything but animus toward the class it effects." Under this shallow reading of Kennedy's opinion, the Constitution permits citizens to express their moral disapproval of homosexual behavior, as long as they do so rationally.

Sunstein acknowledges that Kennedy's opinion might be read in this limited way, but he rejects the shallow reading in favor of a deeper one. In Sunstein's view, Kennedy's opinion stands for the more ambitious proposition that the equal protection clause of the Constitution "requires that discrimination must be rational in the sense that it must be connected with a legitimate public purpose, rather than fear and prejudice or a bare desire to state public opposition to homosexuality as such." If the Romer Court had indeed embraced this plausible but deep principle, then the decision would seem to call into question not only the anti-gay rights amendment passed by the citizens of Colorado but also most laws expressing moral disapproval of homosexual behavior, including the ban on same-sex marriages. Sunstein acknowledges this possibility, but then he says that judges should resist the temptation to invalidate the ban on same-sex marriage, even if they believe that it violates the Constitution, because such a decision could "galvanize opposition," "weaken the antidiscrimination movement," "provoke more hostility and even violence against homosexuals" and "jeopardize the authority of the judiciary."

This exaltation of prudence over principle resurrects the vices of Frankfurterism. In the years after the Court decided Brown v. Board of Education, Frankfurter urged the Court to avoid hearing cases that would force it to strike down anti-miscegenation laws, on the grounds that such a decision would be fiercely resisted in the South. Yet there is no convincing evidence that Loving v. Virginia, the decision that finally did strike down anti-miscegenation laws in 1968, would have been much more fiercely resisted if it had been handed down five years earlier; and it is hard to think of a good reason, aside from the self-protective instincts of the judiciary, for refusing to apply a constitutional principle to a similar case that it clearly encompasses. Sunstein rejects the notion that it is "too pragmatic and strategic, too obtusely unprincipled" for judges to exalt prudence over principle in highly controversial cases that are likely to provoke popular resistance; but since he fails to tell us what he thinks about the wisdom of deferring a decision in the miscegenation cases, or about the timing and substance of many other landmarks of the Warren era, it is hard to say whether his theory has more general application, or whether it is contrived for a particular group of justices at a particular time.

 

IV.

As the contrast between the gay rights opinion and the voting rights opinion shows, deep opinions may be as likely to preempt democracy as shallow ones, though for different reasons. This is a wrinkle that Sunstein's analysis is perfectly able to accommodate: he argues convincingly that the case for shallowness or depth may vary depending on the context in which a particular constitutional issue is being debated in the democratic sphere. A more fundamental criticism of Sunstein's judicial minimalism is that, when push comes to shove, he does not really trust democracy at all. He is committed to deliberation in the abstract, but he is willing to override the judgments of the actual citizens in actual debates when they do not coincide with his own intuitions about what a deliberative democracy should embrace. Democracy, Sunstein stresses repeatedly, should not be confused with simple majoritarianism: "There is a large difference between democracy, properly understood, and whatever it is that a certain majority has chosen to do at a certain time." But at times the outcomes that Sunstein is willing to credit as genuinely "deliberative," as opposed to "naked preferences" supported by " power but not reasons," look surprisingly like the outcomes with which Sunstein happens to agree.

Consider affirmative action. "I start with the suggestion that the issue of affirmative action should be settled democratically, not judicially," Sunstein writes. He then praises the Supreme Court's "meandering course, its refusal to issue rules, its minimalism" in the affirmative action cases, which "might be defended as performing a valuable catalytic function ... to spur, but not to preempt, effective public debate." All this is entirely plausible. At the moment, the Court is closely divided between two wide, deep, and mutually inconsistent readings of the constitutional guarantee of equality. Four justices--Scalia, Thomas, Rehnquist, and a little more tentatively Kennedy--seem to believe that affirmative action is unconstitutional in nearly all circumstances because the constitution is color-blind. Four justices--Stevens, Souter, Ginsburg, and Breyer--seem committed to the principle that affirmative action is permissible in most circumstances because the constitution prohibits only racial classifications that promote racial castes. Sandra Day O'Connor, naturally, has not made up her mind.

The court's inability to muster five votes for one alternative over the other has resulted in a series of fragmented opinions that have indeed provoked, as Sunstein suggests, a useful debate about the permissible scope of affirmative action in the public sphere. The affirmative action cases show O'Connorism at its most galvanizing: by offering a series of narrow and shallow distinctions--affirmative action may be permissible in universities but not in federal contracting; diversity is a more important goal in the classroom than on federal highway projects--the Court has provoked legislators and citizens to debate a complicated topic in sophisticated ways.

The most important of these debates took place in California and culminated in Proposition 209, which was adopted by the citizens of California on November 5, 1996. It says that "the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting." One would have expected Sunstein to praise Proposition 209 as a democratic settlement of our most hotly contested social question. In a remarkable passage, however, Sunstein suggests that Proposition 209 may not deserve to be considered democratic at all. "Political processes in California on this issue did not appear to be deliberative," he writes. The "American system is one of representative rather than direct democracy, partly because of a judgment that political deliberation can be best promoted through a representative system. If judicial decisions stimulate poorly functioning referenda processes, little will be gained."

Indeed, Sunstein goes so far as to suggest that the Court might have been justified in striking down Proposition 209 as unconstitutional when it was asked to do so: "It would have been an intriguing irony if the Court, committed to a minimalist path with respect to affirmative action, chose to strike down a referendum in part with the knowledge that it contained a ban that prevented the kind of careful analysis of particulars that has stood behind the Court's own decisions." But surely the point of minimalism is to allow citizens to converge around what they consider to be a deep principle of justice that removes some subjects from the judicial realm once and for all. Sunstein then backtracks, noting that "we can understand" the Court's refusal to hear a constitutional challenge to the California initiative on the grounds that "the judiciary ought not to disrupt ongoing processes of political debate over the status of affirmative action."

Sunstein's notion that Proposition 209 may not have been sufficiently " deliberative" calls his broader commitment to "deliberative democracy" into question. He offers no evidence about the character of the debate over Proposition 209, except to note casually that "in the context of affirmative action in particular, there is a danger that referendum outcomes will not be based on a careful assessment of facts and values, but instead on crude 'we- they' thinking." In fact, the debate over Proposition 209, like all political debates, was a messy combination of high principle and low politics: it contained appeals to clashing principles (its sponsors, two college professors, are earnest proponents of the view that the Constitution should be color-blind), factual predictions that turned out to be overly optimistic (affirmative action opponents didn't anticipate the political pressures to lower standards for all students across the board), as well as some crude racial appeals. But this is what real debates in real democracies look like.

Sunstein also presents no evidence to support his claim that representative democracy is more likely to promote cool deliberation on the affirmative action question than the initiative process is. President Clinton's public statements in the wake of the Supreme Court's decision in Adarand v. Pena have been characterized by obfuscation rather than by an honest effort to confront the hard choices that the Court demanded, and Congress has proven similarly unable to sustain a reasoned debate on the subject. By blithely dismissing the product of the one popular debate that the country has produced on affirmative action as insufficiently deliberative, Sunstein reveals his commitment not so much to an actual process of democratic debate as to a disembodied ideal of "deliberation" that seems untethered to political discourse as it is actually practiced in any popular or representative body in the United States.

This is an occupational hazard in some strands of the Civic Republican school of constitutional interpretation, for which Sunstein has shown sympathy in the past, but it poses a serious threat to Sunstein's arguments for judicial minimalism. Without a clear, neutral, and intelligible way of distinguishing genuinely "deliberative" democratic debates from those that don't deserve to be called democratic, Sunstein risks substituting his own visions of good policy for those of the people. And that is precisely what minimalism promised to avoid.

The note on which Sunstein concludes his book seems exactly right. "I am speaking of a presumption, or perhaps of a mood, and not of a rule," he writes, indirectly evoking Learned Hand's famous definition of the spirit of liberty. "This is especially important for judges who are not too sure they are right." Adjudication in a pluralistic society, he suggests, calls for "a presumption in favor of theoretical modesty, especially when courts are asked to invalidate legislation." Sunstein's even-handed tone is exemplary in this regard; and if the Court followed Sunstein's model, with scrupulous acknowledgment of opposing arguments and of intellectual complexities, its opinions might be more convincing.

Still, Sunstein's indulgence of the Court's aversion to theory, and even to sophisticated legal argument, is based on a surprisingly dim view of the capacities of political or judicial actors to engage in a dialogue about controversial issues. He insists on deliberation in the abstract, but he has little faith in courts, legislatures, or the people themselves to persuade each other through reasoned debate. His tolerance of thinly reasoned, over- simplified judicial opinions is also hard to reconcile with the vision of democracy that he insists minimalist decisions are designed to serve. Democracy, he writes,

embodies a commitment to ... reason-giving in the public domain. For the deliberative democrat, political outcomes cannot be supported by self- interest or force. 'Naked preferences,' in the form of legislation supported by power but not reasons, are forbidden. Existing judgments and desires must be made to survive a process of reflection and debate; they are not to be taken as sacrosanct or automatically translated into law.

But how can we demand from the justices of the Supreme Court an even lower standard of deliberation, reflection, reason-giving, and intellectual accountability than we demand from the citizens of the United States?

 

V.

If the impeachment of Bill Clinton accomplished anything, surely it should have disabused constitutional theorists of the Panglosssian ideal of democratic deliberation in America as a sober, cool, ratiocinative exercise in achieving consensus through reasongiving. In this diverse and truculent country, there are fierce and irreconcilable differences of opinion about the moral and political and cultural battles that culminated in the Clinton impeachment. To imagine that these philosophical disagreements can be overcome by earnest legislators and citizens persuading each other through reasoned argument will strike anyone who lived through the past year as fanciful; and it betrays an abstracted idealization of the process of politics over the substance of politics.

Indeed, if there was any poetic justice in the impeachment, it was to display the shallowness of the Clintonian ideal of "the national conversation" as a cure for all political ills. At the same time, the president's acquittal reminded us of the rough wisdom of a Constitution founded on popular sovereignty: for more than a year, public opinion about Clinton's transgressions showed far more nuance and maturity than the partisanship and the sanctimony that dominated public debate in the media, in Congress, in the White House, and even in the courts. An unsentimental assessment of the limits of political deliberation, in other words, is not an argument against American constitutionalism. It is an argument for American constitutionalism. There are some conversations that are pointless to prolong. At some point, everybody has to shut up and vote.

The events of the past year also reminded us of the constitutional costs of encouraging Supreme Court justices to reduce themselves to plumbers and tinkerers. The legal forces that culminated in the Clinton impeachment--in particular, the erosion of privacy law, embodied in Fourth and Fifth Amendment protections for individual control over personal information; and the expansion of sexual harassment law, to a point where people can be interrogated about the details of their consensual relationships on the flimsiest of allegations--are the product of surprisingly recent decisions by the Supreme Court. They took place during the three decades from the beginning of the 1970s to the end of the 1990s, when the justices, stung by allegations of activism during the Warren years, began to shun the grand style, and to write minimalist opinions that handed down results without bothering to justify them with coherent reasons. As a result, fundamental constitutional protections were diluted or even abandoned more out of carelessness than constitutional principle. It was during the '70s and '80s, for example, that the axiom that private diaries could not be subpoenaed as mere evidence in civil or white-collar criminal cases--the paradigmatic example of an unreasonable search and seizure for the framers of the Fourth Amendment--was allowed to wither away without anyone acknowledging its slow demise.

Just a few weeks ago, the Court handed down the latest of its sexual harassment decisions, Davis v. Monroe County Board of Education. In a 5-4 opinion written by Justice O'Connor, the minimalist-in-chief, the Court held that sexual interactions among elementary school students can be a form of actionable gender discrimination, and that schools may be liable for the sexual advances of their fifth-grade charges whenever they act with " deliberate indifference" to harassment that is "so severe, pervasive and objectively offensive that it effectively bars the victim's access to an educational opportunity." Although characteristically shallow, O'Connor's opinion is hardly narrow: it represents judicial legislation of the most sweeping kind, and it threatens to entangle schools and universities in litigation, as they face the risk of liability for disciplining unruly students, or for failing to discipline them.

In a powerful dissenting opinion joined by Justices Rehnquist, Scalia, and Thomas, the three villains of Sunstein's book, Justice Kennedy pointed out the profound analytical difficulties with viewing sexual horseplay among elementary school students, who can hardly be expected to act like adults, as a form of sex discrimination; and he also noted the serious First Amendment threats that may arise as elementary schools and universities feel overpowering pressure to adopt speech codes in order to avoid liability. But the protests of the dissenters rang a little hollow. For the difficulties that they noted are an inevitable consequence of the Court's decision to treat sexual attraction as a form of gender discrimination more than a decade ago, in a series of shallow unanimous opinions, joined by the conservative as well as the liberal justices.

Even more than Roe v. Wade, the Court's sexual harassment decisions have precipitated a profound shift in social norms; but although scholars and litigants have been begging the Court to confront the analytical difficulties of the revolution that it set in motion for more than a decade, the Court is only now beginning to acknowledge that its social experiment may be spinning out of control. If this is minimalism, the Court might have saved us all a lot of trouble by thinking through the consequences of its decisions before it was too late to turn back.

In an effort to avoid the grand style of Warrenism, the Rehnquist Court has swung so far in the other direction that legal scholars today are feeling a little like the man drinking at the bar on the Titanic. ("I asked for ice," he says, "but this is ridiculous.") What has been lost is the basic ingredient of principled decision-making, which is a commitment to judicial reason-giving. The problem with the most notoriously maximalist decisions of the Warren and Burger Courts--Roe is the paradigm case--was not that they were philosophically ambitious, it was that they were overly simplistic and thinly reasoned. And the minimalist decisions of the Rehnquist Court suffer from precisely the same flaw. Thus we have the spectacle of a Court exercising great power without offering publicly accountable reasons, which seems hard to reconcile with the vision of democracy that minimalism was designed to promote.

In judicial opinions, as in democracy, there are different ways of achieving consensus. One is to offer as few reasons as possible, so no one can possibly feel slighted. Another is to offer as many reasons as possible, none of which is dispositive, but each of which, like strands in a rope, bind together to strengthen the whole. A minimalist who took seriously the judicial duty of reason-giving might recognize that there are, in this pluralistic age, a range of plausible interpretive methodologies, and that judicial intervention seems most legitimate when it can be justified along as many different axes as possible. The conventional tools of legal interpretation--text, history, precedent, tradition, constitutional structure, and moral argument--often point in very different directions. A minimalist judge who took seriously her responsibility to persuade citizens of "diverse theoretical commitments," as Sunstein puts it, might be inclined to defer in the face of contestability, and to strike down laws only in those rare cases when the different methodological tools all point in the same direction. By giving more reasons, rather than fewer reasons, a decision to invalidate could be justified in ways that judges and citizens with clashing moral and political and constitutional commitments can accept and understand.

At this unexpected moment of legal consensus, as liberals and conservatives are converging around the ideal of theoretical humility, perhaps it is time to recover some of the faith in judges as reason-givers that we have spent the past forty years trying to overcome. I do not mean faith in the over- confident, democracy-thwarting opinions of the Warren era. I mean faith in the ability of chastened judges to justify their restrained decisions with intelligible, publicly accessible, well-reasoned and at times even deep arguments that provide clear guidance to citizens and legislators. Whether they (or we) like it or not, judges, and certainly justices of the Supreme Court, are, or should be, intellectuals. They exemplify, or they should exemplify, the indissoluble connection between law and reason.

Thanks largely to the transformation of legal culture that the reaction to Warrenism helped to precipitate, the federal bench in general, and the Supreme Court in particular, is now composed of an able group of Democrats and Republicans, whose similarities are more notable than their differences, and who agree more than they disagree about what distinguishes good legal arguments from bad ones. It is indeed passive-aggressive for this Court to hoard its enhanced authority by retreating into an elliptical and obscurantist unanimity. The philosophical silence of the Supreme Court is an anti-democratic silence. Have we all been so spooked by the ghost of Warrenism that we have inadvertently revived it in a different form?

Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.

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