Sunstein: Conservative Divide on the Supreme Court

Minimalists vs. Visionaries: The real divide on the Supreme Court is between two kinds of conservatives.
Cass R. Sunstein
WashingtonPost.com
June 28, 2007

The most intriguing development on the Supreme Court this term has been the emergence of a powerful alliance between two different kinds of conservatives: the visionaries and the minimalists.

Justices Antonin Scalia and Clarence Thomas, the visionaries, are not merely predictable in their votes; their sweeping opinions call for fundamental changes in constitutional law. Chief Justice John Roberts and Justice Samuel Alito, the minimalists, have also turned out to be predictable in their votes. But their opinions tend to be cautious, narrow and unambitious. They are reluctant to reject the court's own precedents, and attempt to rule in a way that preserves them.

In every one of the term's key cases, including today's momentous decision on school-desegregation plans, the minimalists and the visionaries have agreed on the outcome -- but they have frequently divided on the reasoning. Roberts and Alito provided the crucial votes for this week's decision to strike down congressional bans on certain corporate advertisements during political campaigns. But they were careful to say that the decision did not reject any of the court's precedents. By contrast, Scalia and Thomas insisted that the court should give broad protection to corporate advertisements and immediately overrule several recent precedents, including the major 2003 decision upholding the McCain-Feingold campaign finance legislation.

Roberts and Alito joined the court's majority opinion authorizing a ban on "partial birth abortion," but without questioning Roe v. Wade. Scalia and Thomas went out of their way to reiterate their view that Roe v. Wade should be overruled.

In the past, Scalia and Thomas have been clear in their blanket opposition to affirmative action plans, which they would eliminate across-the-board. With its decision today striking down race-conscious student-assignment plans, Roberts' opinion for the court was not exactly narrow. But he was careful not to question the court's precedents permitting affirmative action in narrow circumstances. Indeed, Roberts' opinion attempted to preserve those very decisions, showing that they involved quite different problems.

The most pointed debate between the minimalists and the visionaries involves the question of whether and when taxpayers can challenge the use of public funds for religious purposes. In its seminal 1968 decision in Flast v. Cohen, the court ruled that taxpayers have "standing" to object when Congress has explicitly allocated taxpayer funds to religious organizations. Relying on Flast, taxpayers challenged the Bush administration's use of public money, through its Faith-Based and Community Initiatives Program, to pay for conferences that seemed to promote religion.

Alito's opinion, joined by Roberts and Anthony Kennedy, rejected the taxpayers' challenge through a self-consciously minimalist route. In Alito's view, Flast need not be reconsidered. It was a narrow ruling that depended on a specific fact: Congress had expressly authorized the use of federal funds for religious purposes. By contrast, the Bush administration had used money from a general congressional appropriation. Alito believed that taxpayers should not be permitted to challenge the executive's decision if Congress had not specifically required it. Limiting the conclusion in Flast to its particular facts, Alito said that the court would not overrule it but would "decide only the case at hand."

Justice Scalia, joined by Justice Thomas, insisted that the court should have ruled much more ambitiously. In his view, Flast is a "blot on our jurisprudence" and should be overruled immediately. Scalia was aware that his disagreement with Alito signaled a much broader jurisprudential division. He acknowledged that "minimalism is an admirable judicial trait," but he insisted that "the soul of the law" is "logic and reason," which the court's minimalist approach failed to offer.

The opinions in the taxpayer standing cases reflect both the overlap and the emerging division between the conservative minimalists and the conservative visionaries. Alito and Roberts typically seek to preserve the court's precedents and to avoid theoretical ambition. By contrast, Scalia and Thomas are not cautious about jettisoning the court's precedents and rethinking them from the ground up.

There are even deeper issues in the background. The visionaries trust "logic and reason" and are enthusiastic about occasional revolutions in constitutional law, if they can be based on what seem to them to be "logic and reason." By contrast, the minimalists can be understood as literal conservatives, seeking to maintain continuity with what has been done before. In a sense, the minimalists are followers of the great traditionalists Edmund Burke and Michael Oakeshott, who distrusted abstract theory, sought to build on the past and favored incremental change.

Notwithstanding these differences, it is both important and true that in every important case this term, the minimalists and the visionaries have agreed about the proper result. Many people anticipated that Roberts and Alito would occasionally disappoint their conservative admirers and even the White House. Because they are skeptical of large movements and general theories, and attentive to details, minimalists do tend to surprise both their admirers and their critics.

To date, however, Alito and Roberts have surprised no one. Careful and lawyerly, and focused on the particular problem at hand, they reject huge changes in favor of small steps. But almost all of their small steps are going in the same direction.

So far the minimalists and the visionaries have consistently made common cause -- on abortion, campaign finance law, employment discrimination, student speech, race-conscious policies, and much more. For the long-term, the key question is whether the minimalists believe only that precedents should not be reconsidered when it is unnecessary to do so -- or believe as well that precedents should be followed even when they are challenged head-on. The future of key constitutional principles -- involving the right to abortion, affirmative action programs, presidential power in connection with the war on terror, and campaign finance legislation -- is likely to turn on the answer.

In short, we will soon see whether the minimalists and the visionaries differ on their preferred destination, or only on the speed with which they try to get there.

The writer, a professor of law and jurisprudence at the University of Chicago, is author of Republic.com 2.0, forthcoming in August.

Copyright Washington Post 2007