Courting Disaster: Interview with Cass Sunstein

JJ Helland
Salon.com
September 12, 2005

Legal scholar Cass Sunstein explains the dangers of "fundamentalist" judges on the Supreme Court, why conservatives should fear right-wing radicals as much as liberals, and what went wrong with Roe v. Wade.

Imagine this: One day in the not-so-distant future you wake up to discover that the constitutional rights you've always enjoyed have been drastically scaled back -- or eliminated altogether. The United States you live in no longer respects an individual's right to privacy. The state of Utah has established Mormonism as its official religion. And many provisions of important environmental, civil rights and labor laws have been struck down as unconstitutional. And all this is not only perfectly legal but actually sanctioned by the Constitution.

Such is the bleak scenario that University of Chicago law professor Cass Sunstein imagines in the introduction to his book "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America." And it's not so far-fetched. With two vacancies on the Supreme Court, conservatives have a chance to dramatically shift the bench to the right. And if it were to become dominated by more fundamentalist justices like Antonin Scalia and Clarence Thomas, the "federalist revolution," as it is called in American jurisprudence, will result in a radical transformation of the Constitution and the concept of liberty as we know it.

Fundamentalists like Scalia and Thomas, Sunstein writes, believe that "the Constitution must be interpreted according to its 'original understanding'" -- meaning, we should read the Constitution the same way people did when the founding documents were ratified. Sunstein thinks this would be disastrous for America; a right-wing bench would radically "destabilize not only our rights but our institutions as well," he writes, and fundamentalists will be "all too willing to read the founding document as if it embodied a party platform."

Yet despite its title, "Radicals in Robes" is no left-wing diatribe. Sunstein shuns "judicial arrogance in its many forms, liberal and conservative alike." And for all the odious implications of fundamentalism he outlines in the book, Sunstein concedes there are problems with the other side, too. "Liberal perfectionism," and its less-than-strict fidelity to the Constitution, is often a valid target of fundamentalists. Placing himself smack in the center, Sunstein instead argues for a "minimalist" judicial approach that eschews political dogma, heeds legal precedent, and is never too sure of its own rectitude. "Minimalism makes it possible for people to disagree when agreement is necessary, and unnecessary for people to agree when agreement is impossible," he writes.

In "Radical in Robes" Sunstein presents an instructive appraisal of the American legal landscape and a cautionary tale, should fundamentalists succeed in securing a majority on the Supreme Court. Salon spoke to him by telephone about his new book, Judge John Roberts, and problems with Roe v. Wade.

Despite the title "Radicals in Robes," I was struck by how measured and tempered the tone of the book was.

In writing the book I was torn between my more basic impulses -- where I treat all views with respect, accuse no one of anything, and be generous with whom I disagree -- and the opposing impulse, which says that the fundamentalists are often playing partisanship when they purport to be doing law. The book was kind of born in a thought that fundamentalists are sometimes hypocritical and haven't defended their position. I hope that the charitable impulse is the dominant one in the book.

Yet, you warn against what would happen in America if fundamentalists dominated the Supreme Court. What would America look like then if fundamentalists eventually got their way, and all these states were allowed to pass whatever laws they wanted?

If, for example, the separation of church and state were abolished at the state level, we would have really horrendous fights among competing religious groups. This would, at the state level, move the United States and its political processes in the direction that we're now seeing in Iraq. Where different people with different ethnic and religious identifications are really at each other.

How does the recent death of Justice Rehnquist play into all of this, especially since John Roberts is now being considered to take his place as chief justice?

Rehnquist's passing obviously raises the stakes. Now President Bush has a chance to alter the court in a pretty major way. We don't know exactly what Roberts will be like, but we do know that he's excellent, likable, and young. [If he is confirmed] as chief justice, he'll have a significant influence. If the next appointment is also a young conservative, the court will be affected for a long time -- especially if the conservative has fundamentalist leanings.

Do you identify Judge John Roberts as a part of the fundamentalist movement?

Roberts is clearly an affable, good person with a really first-rate mind. But there are people like Justice Scalia who are also affable, good and have a first-rate mind, but who are, in some ways at least, radical. Judge Roberts seems to be quite lawyerly, not given to bitterness, anger or broad pronouncements. On the basis of what record there is so far, he looks more like a Rehnquist type than a Scalia or Thomas. That is, someone who is definitely conservative and who will shift the court a bit. But maybe he'll be more unpredictable than Rehnquist has been. I think it's a very interesting choice, partly because of the ambiguity. He doesn't seem like someone who has a clearly defined agenda. What are some of the differences then between the liberal perfectionist and fundamentalist interpretations of the Constitution?

The liberal perfectionists are certainly faithful to the text of our Constitution. What they want to do is understand the document, the "majestic generalities" -- equal protection, due process, and cruel and unusual punishment -- and cast these generalities of our Constitution in the best possible light given our current values. If the death penalty is cruel and unusual punishment, then given our current values, we should strike down the death penalty. If bans on same-sex marriage are inconsistent with the best understanding of equal protection, then we should strike down bans on same sex marriage. So that's been a very popular view among American liberals in the last half-century. Fundamentalists think that that gives too much discretion to judges, and that it's not really faithful to the historical Constitution. They want to turn constitutional law into a series of historical questions, whereas the perfectionists want it to be a question of values where we don't go back in time machines.

And part of the fundamentalists' view of constitutional law has to do with the distinction between "original meaning" and "original intent" in their legal interpretations.

The best fundamentalists insist on this distinction. The "original intent" asks, What did the framers intend? The fundamentalists think it is very hard to know what particular people intended, and second, it doesn't matter what they intended, because the intentions of the framers of the Constitution have no authority. What matters is what the "original meaning" was to the people who ratified, or gave these phrases legal force. If today we ratified a constitutional provision that allowed Congress to ban flag burning, fundamentalists would ask what the words "ban" and "flag burning" meant. They want to ask questions about common understandings at the time, not about subjective views inside people's heads. It's a subtle distinction, but it matters. Suppose Congress passes a law today. Do we ask what Senator Kennedy and Senator Hatch intended by the law? Or do we ask, What is the natural meaning of the law, given how language works today?

President Bush constantly invokes the term "strict constructionist" when describing judges he likes or judicial philosophies he prefers. How has this phrase been used by the fundamentalist movement to make it more palatable to the public?

The use of the noble sounding "strict constructionist" phrase is a camouflage for a set of views that are quite radical. If it was "radical construction" or "extreme right-wing construction" it wouldn't be as appealing a description. Some Republican extremists have been terrific propagandists and they have been extremely good at coming up with phrases that make radical plans sound innocuous and wonderful. But I don't think the country has come close to getting an adequate picture of what it would entail. One reason is because fundamentalists are evasive when pressed about the implications about their position. When they're asked, "Doesn't this mean the national government is permitted to discriminate on the basis of race?" they change the subject or make it more complicated.

Is it just liberals who should be afraid of this radical movement? Or should conservatives be concerned, too?

One of the best developments in the last six months is that Arlen Specter gets it. He understands that conservatives have a lot to lose if the court continues on a program of reasserting limits on congressional power. The Rehnquist court has struck down more than three dozen acts of Congress, like the Religious Freedom Restoration Act -- which was mostly a conservative initiative. If the court had struck down the ban on marijuana for medical purposes -- and Justice Thomas wanted to strike down the ban -- conservatives would've been more upset than liberals. The War on Terror might be compromised in its attempts to enlist the states in the protection of national security. Some of the court's decisions raise some questions about that. There are a lot of things that conservatives would want to do through Congress that the fundamentalists won't let them do. I think Specter wants to ask Judge Roberts some questions about that.

In your book you quite plainly list the number of potential consequences should fundamentalists gain a majority on the court.

I believe fundamentalism actually means that the national government is entitled to discriminate on the basis of race and sex, and there is no equality principle applied to national government. Fundamentalists believe that there is no right to privacy. If the government wanted to disclose your medical records or bank records, there's no constitutional problem with that. They believe that state governments can discriminate on the basis of sex however they want. They believe that state governments can engage in racial segregation. And many fundamentalists think that you can't have independent regulatory agencies.

How does the rise of the religious fundamentalist movement in this country figure into all of this?

I didn't get into the religious right [in the book] because I am a law professor who hasn't studied the underlying political dynamics. But the fact that the word "fundamentalist" has an echo of religious fundamentalism didn't bother me. What bothers me about religious fundamentalists is that they think the law is much more against them than it actually is. They act as though the Supreme Court is on some sort of rampage against religion -- which is ridiculous. This Supreme Court is much more sympathetic to the claims of religion than any other court in the last 40 years. There is also a feeling that some religious fundamentalists have that religious pluralism is un-American, that ours is a Christian country, and to affirm that through our law is good and natural. Justice Scalia and Justice Thomas have gone further in the direction favored by the religious right, rather than in the best interests of a pluralistic democracy.

It seems like many of Justice Thomas' positions are quite radical. You write in the book that he would see nothing wrong allowing a state to establish an official religion for itself.

Let me say something about Justice Thomas. There's no doubt that he has an interesting mind and he's creative, but he is one of the most extreme people we've ever had on the Supreme Court. He believes the separation of church and state doesn't apply to the states; he believes commercial advertising receives the same protection as political speech; he suggests that the court should start striking down agencies on the ground because they exercise too much discretion; he takes the hardest line imaginable against campaign-finance reform without looking at the original understanding of the Constitution; and he says that affirmative action programs have to be struck down. He's treated as a Scalia partner, but Scalia is, for all his bravado, interested in precedent. Thomas doesn't seem to be interested in precedent. What about the Warren Court? Do you feel it made too many aggressively liberal rulings?

I think that some of the Warren Court's decisions were a little lawless and jumped too far too fast. In so many areas the court's ideals didn't have clear constitutional foundations. The Griswold v. Connecticut case, which created the general right to privacy, was that kind of ridiculously weak opinion. The court didn't identify a clear constitutional basis for saying that the ban on contraceptives within marriage was impermissible. The court referred to "penumbras" and "emanations"[in the language of the ruling] from the Bill of Rights. But the Bill of Rights doesn't have "penumbras" and "emanations"; it just has a catalog of rights. It would have been better to say that the ban was never enforced and it was a recipe for arbitrary and unpredictable action by the police in a way that does violence to the rule of law.

I think the "one person, one vote" decision [Baker v. Carr, Reynolds v. Sims] -- which was in many ways a success -- has very weak constitutional roots. The court was responding in this case to allocations of voting power that were racist. But instead of insisting on the "one person, one vote" principle, it would have been more reasonable for the court to interpret the Equal Protection Clause more narrowly. For instance, a ruling that would have forbidden racially discriminatory and arbitrary allocations of voting power in this case would've been sufficient, ... rather than insisting on "one person, one vote."

It seems like your average person would hear that and say that doesn't seem fundamentally fair.

That may be true, but the Constitution doesn't have a fundamental fairness clause. There are lots of things that are fundamentally unfair that the Constitution doesn't forbid, like homelessness and starvation, which are in my view fundamentally unfair. However, at this stage, I wouldn't question the "one person, one vote" principle. Precedence has its claims and it's been around for a long time. It's been administrable and it's corrected both discrimination and arbitrariness. But hauling out a principle that doesn't have clear roots in the Constitution is properly questioned.

Did the overreaching decisions from the Warren Court pave the way for the conservative Rehnquist Court?

I wouldn't quite say that. In the early 20th century, the Supreme Court was striking down minimum wage and maximum hour laws, laws protecting labor unions, and laws forbidding child labor. Conservatives were very eager to get the courts to distort ambiguous constitutional provisions to serve right-wing ends. When conservatives lost that after the Roosevelt administration, there was a continuing effort in the '40s and '50s to get the court to do what the right wanted. The conservative eagerness to use judicial power for their partisan ends long predated the Warren Court.

The Supreme Court decision to legalize abortion has probably been one of the most controversial rulings from that era. Do you feel that, given how divisive the issue of abortion continues to be, Roe v. Wade was a mistake in any way?

Roe v. Wade itself was probably a horrible moment for liberal politics and almost certainly created the Moral Majority. Roe simultaneously demobilized the pro-choice movement in politics and fired up the pro-life movement everywhere. There probably would've been an Equal Rights Amendment without [Roe v. Wade], less agitation with the process, and stronger legal commitments to sex equality in general. It's absolutely true that if the court goes in the teeth of the public, it can hurt the cause that you're trying to promote.

How do you think the Roe v. Wade decision should've proceeded?

I think the Court should've said, in the Texas and Georgia cases [pertaining to Roe v. Wade], that these laws are so draconian in their reach that they're unconstitutional. The Texas law didn't allow abortion in cases of rape. So the court could've said very narrowly that we're not going to say anything general about what the Constitution says with respect to abortion -- but women who have been raped have a right to have an abortion. The Georgia law had procedural hurdles for women seeking abortions that seemed to intrude on women's interests and went well beyond what was necessary to make sure that the decision was reasonable and well-considered. The court could've said simply that the Texas law didn't have an exception in cases of rape, and the Georgia law went far beyond what is reasonable and necessary to protect fetal life. And that way there would've been a continuing dialogue between the states and the Supreme Court on the abortion issue.

But would that "continuing dialogue" between the states and the Supreme Court have eventually produced the broad set of abortion rights women currently have under the law?

Well, we don't want to fall in the trap of reading the Constitution to do whatever is good. This is the activist fallacy, on both the left and the right, which says that if something is very good, then the Constitution requires it. Even if the pro-choice people are correct, we have a Constitution that we're reading here. It's not true that the text and history of the Constitution, at the time, clearly supported the broad right to choose abortion. I am not saying that Roe v. Wade should be overruled. I don't think it should. It's been the law now for a long time. But I am saying that as a matter of pure self-interest, decisions like Roe often backfire.

So let's say the Roe v. Wade ruling was approached from a minimalist perspective, where would we be then regarding abortion rights?

The court might've gradually built up to something pretty close to Roe v. Wade without anything like the intense public backlash that Roe itself yielded. We would've eventually gotten there through the slow process of case-by-case decisions. Another possibility is that the court would permit some restrictions on abortion rights -- more restrictions than it now does -- and we would see some variability across the states. Some states would basically ban abortion, with exceptions for rape and incest, but most states would allow abortion, probably quite freely. We wouldn't have the intense political tangles we now do, and things would be much more congenial between pro-choice and pro-life people.

Finally, have you found it difficult to have any sort of dialogue with fundamentalists, even though being a minimalist means you agree with some of their criticisms?

Yeah, I have. I find of number of them [fundamentalists] dogmatic and extremely confident. They like to accuse people who disagree with them of bad faith, and they think the word "liberal" is disqualifying of the need to engage in arguments. The most you can hope for is that people who are still thinking will see that their view has to be defended rather than shouted.

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