Sunstein Opposes Supreme Court

Why We Must Strive for Balance: Right-wing activists shouldn't fool themselves that there's a close fit between their own political commitments and the Constitution
Cass R. Sunstein
Chicago Tribune
July 6, 2005

Ever since the election of President Ronald Reagan, American conservatives have been sharply divided about what was wrong with the liberal activism of the Earl Warren court era of the 1950s and '60s. The division has led to two radically different views about the proper role of the U.S. Supreme Court in American life.

The first view reflects the principled conservatism represented by Justice Felix Frankfurter, the great conservative on the Warren court. Frankfurter thought that the Supreme Court should respect the decisions of elected officials. He despised the court's willingness to enter what he called the "political thicket."

Frankfurter was a judicial minimalist, in the sense that he wanted the court to proceed in small, incremental steps. To minimalists, Roe vs. Wade symbolizes judicial hubris; they do not want to create new rights or to expand on the right to privacy. But minimalists disapprove of right-wing judicial activism no less than they disapprove of its left-wing sibling. They are reluctant to use the Constitution to strike down affirmative action programs, gun control laws, environmental regulation or campaign finance reform. They think that questions of this kind should be resolved democratically, not by the judiciary.

The second camp embodies the brand of conservatism once represented by Robert Bork and now by Antonin Scalia and Clarence Thomas. Conservatives of this kind reject minimalism in favor of a kind of fundamentalism, in the sense that they believe that the Supreme Court should discover and enforce the "original understanding" of the Constitution. In their view, liberal activists have failed to pay attention to the Constitution itself. The real question is what the text, read in light of its history, asks courts to do.

Fundamentalists think that radical steps are necessary to restore what they now call the Lost Constitution or the Constitution in Exile. They are perfectly willing to strike down affirmative action programs, gun control legislation, environmental regulations, restrictions on commercial advertising, campaign finance laws and much more.

Justice Sandra Day O'Connor was the Supreme Court's leading minimalist; she was Frankfurter's kind of conservative. She prized stability. She was reluctant to overturn precedent in the name of the original understanding of the Constitution.

In conservative circles, fundamentalism has been on the ascendancy and minimalism in retreat. Many conservatives see O'Connor as a kind of infidel. When President Bush speaks in favor of "strict construction," he is widely taken to be endorsing fundamentalism. Several of his appointees are committed fundamentalists. And in the abstract, fundamentalism does seem to be both principled and appealing. But it also has serious problems.

Many fundamentalists read the Constitution as if it embodies the views of the most extreme wing of the Republican Party.

They believe that the Constitution reflects their own views on the great issues of the day--abortion, gun control, affirmative action, campaign finance reform, property rights, separation of church and state, and much more. What a happy coincidence!

Too much of the time, fundamentalists do not consult history at all, and the idea of the "original understanding" is a complete sham. Consider two examples. Constitutional history suggests that affirmative action is perfectly acceptable. (The framers of the 14th Amendment actually engaged in race-conscious efforts to help the newly freed slaves.)

History also suggests that the framers meant to give little protection to property owners against regulations that diminished the value of their land. All too conveniently, many fundamentalists disregard history when it leads to results that they dislike.

But suppose that fundamentalists were faithful to the original understanding. Even so, their approach wouldn't be much better. As we live them, our constitutional rights are a product of over two centuries of practice; they are not frozen in the 18th Century. Fundamentalists are evasive about the real consequences of their theory, and for good reason.

If we decided to return to the original understanding, the national government would be permitted to discriminate on the basis of both race and sex. Congress could certainly engage in racial segregation. The states could probably segregate the races as well. They could certainly ban women from practicing law or medicine. The right of privacy would be abolished. States might well be permitted to establish official religions (and Justice Thomas has explicitly argued that they can). If we embraced the original understanding, the Federal Reserve Board, the U.S. Securities and Exchange Commission and the National Labor Relations Board might well be in constitutional trouble.

In short, fundamentalists want to embark on a project of constitutional revisionism that would make the Warren court look pitifully timid.

Right-wing activists even appear to have convinced themselves that by remarkable coincidence, there is a close fit between their own political commitments and the Constitution itself. This is of course a delusion. But in the end, they might turn out to be right. If they continue to appoint judges who see things their way, the fit will become closer every day.

Cass R. Sunstein is a law professor at the University of Chicago. His latest book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, is due out in October.

Copyright 2005 Chicago Tribune Company