Book Review of Radicals in Robes

Judging the judges: liberals need a new constitutional vision to guide their decisions. Cass Sunstein may have it
Stephen Pomper
Washington Monthly
September 1, 2005

At this summer's convention of the American Constitution Society (a young organization of left-of-center lawyers that serves as a counterweight to the well-established right-of-center Federalist Society), a breakfast panel debated the question: "Is there a Progressive Constitution?"

If the choice of topic signaled a certain defensiveness, there was good enough reason. Today's liberal lawyers are groping around in something of a constitutional fog. Yes, there is a "Progressive Constitution," in the sense that there are lines of cases dating back to the New Deal era that interpret the Constitution in a manner well-aligned with liberal policy preferences. But is there a coherent method or a philosophy that ties those cases together?

During the Warren Court era, the legal left argued that we have a living Constitution that can be flexibly imple-mented by beneficent judges making occasionally heroic doctrinal leaps. That approach was never satisfyingly princi-pled, however, and it's more or less useless in today's world--where constitutional law is already synched up with liberal policy in areas like civil and reproductive rights, where Republican appointees increasingly control the federal bench, and where any doctrinal leaps that happen are likely to take the law in what liberals would consider the wrong direction.

To make matters worse, the conservative legal movement has no such predicament: For decades now, conservative thinkers have fine tuned a set of doctrines and principles that can help translate into law conservative policy preferences on everything from abortion to the presence of religion in public life. All that remains is for the president to appoint Supreme Court justices who are willing to do the job. And with the ailing Justice William Rehnquist and the aging Jus-tice John-Paul Stevens looking like good candidates to join Justice Sandra Day O'Connor in retirement before 2008, he may well have the opportunity to do that. Given that liberals are likely to have scant control over this process (Senate filibuster threats notwithstanding), liberal Court-watchers have had few options other than to look hopefully at the fact that over the last half century many Republican-appointed justices (most recently O'Connor and Kennedy) have tended to drift left during their time on the Court. Indeed, when O'Connor announced her retirement at the beginning of the summer, the one consistent theme in an otherwise discombobulated Democratic response, was that it would be great if President Bush nominated someone just like her. But even that wish was somewhat ill formed. After all, what exactly does "just like Justice O'Connor" mean in terms of judicial philosophy? And what does it say about how Democrats should evaluate John Roberts or any subsequent Bush nominations to the Court? And what kind of guidance does it give about how the Democrats themselves ought to approach judicial appointments when they are back in power?

Folks who are trying to muddle through these difficult questions would be well advised to consult Cass Sunstein's slender new book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. Try not to get hung up on the hyperventilating title, which does the book a disservice by suggesting that it is a polemic. It isn't. Sunstein, who for years has been the most prominent liberal at the famously conservative University of Chicago law school, has culti-vated an impressively clear-eyed view of strengths and weaknesses on both sides of the ideological divide. And while this book certainly delivers on its promise to offer a clear (and often persuasive) takedown of the conservative legal movement, it also offers unvarnished criticism of the left's constitutional traditions. But perhaps most important, Sun-stein also takes the opportunity to sketch out the framework for an approach to constitutional interpretation that centrists and liberals may find attractive.

Part of Sunstein's vision is to divide the constitutional world into four interpretive camps. On the right side of the spectrum are proponents of "originalism" like Justices Thomas and Scalia, who believe that the Constitution should be interpreted today as it was originally understood by its ratifiers (and whom Sunstein calls "fundamentalists" because of their emphasis on the Constitution's historical foundations). Over on the left side of the Sunstein spectrum are the "per-fectionists," who see the open-ended language of the Constitution as an invitation to "perfect" the law by fashioning new types of rights that they think are consistent with appropriate constitutional values. Liberal jurist Earl Warren was a perfectionist, and Roe v. Wade was a perfectionist decision. And in the middle of the spectrum are two groups that in-clude both liberals and conservatives--the "majoritarians" and the "minimalists."

Majoritarians believe that the elected branches of the government (Congress and the White House) should interpret portions of the Constitutions that are ambiguous, and the courts should stand aside; Oliver Wendell Holmes was a ma-joritarian, but there are none on the Court today. Minimalists also try to cabin the role of the courts in constitutional matters, but they do so differently--by emphasizing the importance of following precedent and of reaching narrow, fact-specific rulings that give future courts room to reach their own conclusions based on changing circumstances. Justice O'Connor and Justice Ruth Bader Ginsburg are each minimalists; so is Cass Sunstein.

Sunstein's first order of business is to take originalism down a peg, by reminding us that although it is the theory of the moment with the ascendant legal right, it is not Holy Writ and has never actually been the dominant school of con-stitutional interpretation at the Supreme Court. To be sure, originalism has considerable theoretical strengths: It is straightforward; it reduces judicial discretion by focusing on constitutional text and history (which leaves more room for decision making by the democratically elected branches of government); and its insistence that the ratifiers' understand-ing should govern judicial decision making helps to put judicial decision making on a more democratic footing since ratification was more or less a democratic act. There are problems, however, with many of originalism's claims to the theoretical high ground. It is not clear, for example, that ratification can be fairly characterized as a democratic act since the ratifiers hardly included a representative sampling of women and minorities. It is also unclear whether the ratifiers themselves intended future courts to follow their understanding of the Constitution. And in any case, it is problematic to suggest that a 21st-century judge can meaningfully think her way into the 200-year-old mindset of a ratifier in order to figure out how he would have approached a modern constitutional problem. (How would a Colonial-era ratifier answer questions about the constitutionality of wiretapping under the Fourth Amendment? Is that even a meaningful question?)

Sunstein's main objections to originalism don't have to do with its theoretical vulnerabilities, however. His princi-pal objections are about the results that it would produce. Sunstein argues that even if originalism were theoretically unimpeachable, we would still want to consider whether it produces good results before deciding whether to support it. Unsurprisingly, Sunstein's view is that originalism would reach very bad results. If applied in its most literal sense, the theory would force the courts to peel away decades of constitutional law, and return the Constitution to the state it was in prior to the New Deal. Sunstein calls this the "Constitution in Exile" (a term that conservatives generally neither use nor condone, although it was coined by conservative judge Douglas Ginsburg). Because liberals generally have more use for the post-New Deal Constitution than conservatives, some of the resulting changes--for example, cutting back Congress' power to pass legislation pursuant to the Commerce Clause--might be considered positive by conservatives and negative by liberals. But some of originalism's implications may also be difficult for some conservatives to swal-low.

A rigid application of originalism would, for example, gut the case law on reproductive freedom--not just in ac-tively contested areas like abortion and gay rights, but on relatively uncontroversial issues like the right of married cou-ples to buy birth control. And it would have a bizarre and troubling impact on the law in areas relating to race and relig-ion. Consider, for example, that an originalist reading of the Fourteenth Amendment doesn't prevent the federal gov-ernment from discriminating on the basis of race. (The equal protection clause only speaks of state action; there's noth-ing in there about the feds.) And there's pretty much no originalist support for the general idea that the Constitution pro-tects women from discrimination either by Congress or by state legislatures. Also, originalism tends to suggest that states actually can establish their own religions. (Some conservatives claim to think this would be kind of great, but they may not be thinking very clearly, unless they're prepared to accept, for example, the Scientological Commonwealth of Oregon.) Sunstein asks: Does anybody really want to put on this ridiculous straitjacket?
 It doesn't seem so because it turns out that when it comes to applying originalism, conservatives themselves go all wobbly. When confronted with the parade of horribles that originalism might spawn, conservatives tend to respond that nobody expects (or wants) the Court to send the Constitution lock-stock-and-barrel back to 192.5, and that they only intend to reinvigorate certain elements. And it also turns out that ostensibly originalist jurists are not always faithful to their originalist principles when historical evidence runs contrary to their policy preferences. Justice Thomas, for exam-ple, has written passionately that race-based affirmative action programs are unconstitutional even though there's a good deal of widely acknowledged originalist evidence that says otherwise. Indeed, when the Fourteenth Amendment was ratified, Congress had already created a race based affirmative action program--the Freedmen's Bureau, which afforded special benefits to freed slaves. The bottom line is that even conservatives who purport to be originalist stalwarts find its strictures a bit too confining some of the time. Where does that leave the rest of us?

It leaves us looking for another constitutional approach. So, what else is out there? Do originalism's failings begin to make Warren Court perfectionism look more defensible? Sunstein says no, for much the same reasons that conserva-tive commentators generally offer for disapproving of the Warren Court. Even though post-War perfectionists generally tried to tether themselves to some principled constraints--for example, the idea that interpretive jumps should always be in the service of increasing access to the democratic process--the approach inevitably places an extraordinarv amount of discretion in the hands of judges. Perfectionism, concludes Sunstein, is just a little too blithely undemocratic, a little too powered by a "Go for it!" mentality, and a little too politically incendiary (consider what Roe did to galvanize the reli-gious right to the lasting detriment of the Democratic Party) to be a good or realistic option. This leaves majoritarianism (which Sunstein regards as attractively principled but, because of its profound deference to Congress, a potential gen-erator of doctrinal instability, and bad results) and minimalism, Sunstein's preferred approach.

Minimalists, explains Sunstein, are opposite in temperament from both originalists and perfectionists: They don't want the courts getting into deep first principle type questions on contentious social issues. They prefer that the law be changed through narrow rulings and small nudges rather than precedent-setting earthquakes. Minimalism does not have the grand theoretical architecture of an approach like originalism, and Sunstein recognizes this, but its modest claims are rather attractive. Modest claim #1: By leaving big decisions to the elected branches, it's fairly democratic--certainly more so than perfectionism or originalism, both of which afford more discretion to the courts to overrule the elected branches. Modest claim #2: It has crossover appeal. Moderate conservatives like Justice O'Connor can do it. (They nudge the law right.) Moderate liberals like Justice Ginsburg can do it. (They nudge the law left.) Modest claim #3: Minimalism reduces the risk of huge screw ups. It recognizes that the courts operate in a sphere of great moral and ethi-cal ambiguity and that if the Court comes down too firmly on one side of an issue it may in fact be monumentally wrong.

Minimalism can be critiqued from both the right and the left. Critics on the right will respond to minimalism in the same way that they responded to Justice O'Connor's jurisprudence--arguing that it produces ad hoc rulings that cast murk and uncertainty over the prospects of future litigants. Sunstein acknowledges that minimalism produces uncer-tainty, but claims that this uncertainty is preferable to making sweeping rules that could go seriously wrong. By con-trast, critics on the left are likely to argue that minimalism is only useful as a defensive strategy, and that a perfectionist strategy was necessary to achieve breakthrough successes in desegregation (Brown v. Board of Education), abortion (Roe v. Wade), and gay rights (Lawrence v. Texas). Sunstein responds that this is not entirely true: In some cases (like Brown), the Court had moved steadily over time in the direction where it ended up, and the decision can, therefore, be defended on minimalist grounds. In other cases, however, a minimalist Supreme Court might have reached narrower conclusions that would have served the country and the liberal cause better. In Roe, for example, it might have looked for fact-specific grounds to strike down the Texas abortion statute that Jane Roe had challenged without going so far as to create a constitutional right to abortion. In the area of gay rights, Sunstein suggests that minimalists might have used an old common law principle against arbitrary enforcement to strike down seldom-used anti-sodomy statutes, rather than expanding privacy rights as the Court recently did in Lawrence v. Texas.

Sunstein does not try to make the case that these minimalist results would have been the equivalent, in each case, of the perfectionist results. But he does claim that if the good results might have been less spectacular in some cases, the bad results--including the political backlash--would probably have been a lot less spectacular, too.

That, of course, is difficult to prove. But whether liberals would have moved further forward, backward or other-wise marching under minimalism's standard during the '60s and '70s seems more or less academic at this juncture. Sun-stein's vision is pragmatic, modest, and respectful of precedent. Democrats and liberals who wish to associate them-selves with those qualities ought to give Sunstein's book a good hard look preferably before the next round of Supreme Court musical chairs begins.

Stephen Pomper, a Washington Monthly contributing editor, is a lawyer in Washington, DC.

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