Sunstein Discusses Rehnquist on "Fresh Air"

Fresh Air
September 7, 2005

This is Fresh Air. I'm Dave Davies, senior writer for the Philadelphia Daily News, sitting in for Terry Gross.

As the nation pays its respects today to Supreme Court Chief Justice William Rehnquist, senators are preparing for confirmation hearings, which begin Monday, on Judge John Roberts. Rehnquist's death Saturday leaves President Bush with two appointments to the nation's highest court, and he quickly announced that Roberts, whom he recently nominated to replace retiring Justice Sandra Day O'Connor, is now his choice for chief justice. Bush has said he'd like to have Roberts confirmed in time for the court's session in October.

To talk about Rehnquist's legacy and the forthcoming confirmation battle, we've turned to Cass Sunstein, a professor of law and political science at the University of Chicago. Sunstein, a former clerk on the Supreme Court, has written widely as an academic on issues of constitutional law. His latest book is "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America."

Well, Cass Sunstein, welcome back to FRESH AIR. Let's talk a bit about William Rehnquist first. How do you rate his impact on the law, among American justices?

Professor CASS SUNSTEIN (University of Chicago): Huge, probably one of the 10 most important justices in the history of the Supreme Court, and possibly in the top five. When he got to the court, the court was quite liberal. He had views that were extreme by the standards of the day and he's pushed the court in his directions on key questions.

DAVIES: He was appointed in 1971, became chief justice in '86. Let's look at the role of the Rehnquist court on some areas of the law. One is the role and powers of Congress.

Prof. SUNSTEIN: Yeah. What Rehnquist wanted to do from a very early stage was to reassert the fact that the Constitution has limits on Congress' power. In his view, after the New Deal, the Supreme Court had let Congress do things that really didn't have much to do with interstate commerce and Congress is supposed to regulate interstate commerce; that's one of its jobs, not just actions within a state. And he succeeded in getting the court to strike down a law that was designed to protect against violence against women. The Violence Against Women Act got struck down, in part, in an opinion he wrote. He also wrote an opinion that struck down a law forbidding guns from being near schools, saying that that had not enough to do with interstate commerce.

After those two very important decisions, Congress now has to worry over things like the Endangered Species Act, hate crimes laws, even the Clean Water Act, in part, because the Clean Water Act applies to bodies of water that just are in one or another state.

DAVIES: So he has struck down a number of laws and we see a clear trend in that area.

Prof. SUNSTEIN: Yeah. I'd say it's a minor revolution. Between the New Deal and the 1990s, the Supreme Court didn't once say that an act of Congress was beyond the power of the national government because it didn't involve interstate commerce. Rehnquist has now made it the case that the courts are available to strike down acts of Congress as violating the rights of states to regulate their own citizens. Whether you like it or not, that's a very big deal.

DAVIES: So if this principle holds, does that mean that any law which does anything beyond strictly regulating commerce, any aspect of our lives, is likely to be overturned or never passed in the first place?

Prof. SUNSTEIN: Well, what Chief Justice Rehnquist really did was to plant a seed and we don't know how big the seed's going to grow, whether it's going to become a tree. It is true that some lower courts have suggested the Endangered Species Act is unconstitutional in some of its applications, which would be very major if the Supreme Court struck down aspects of the Endangered Species Act.

It's also true that Congress has tried to prevent hate crimes by saying it's a federal crime to engage in acts of violence against people because of their race or religion or ethnicity. That may be unconstitutional under what Chief Justice Rehnquist has done. So how big this development is going to be remains to be decided. But because of Chief Justice Rehnquist's work, this is really on the agenda.

DAVIES: Justice Rehnquist cast a dissenting vote in the Roe vs. Wade decision which struck down the state laws prohibiting abortion. What was his role in privacy and reproductive rights?

Prof. SUNSTEIN: Very, very important. Chief Justice Rehnquist resisted, very aggressively, the idea that the Constitution protects a right of privacy at all, really. He thought that if the national government, or the state government is intruding in the private domain, including the domain of reproduction and childbirth, it can do that so long as it has any kind of legitimate reason. What he was not able to do was to eliminate the right to choose or to abolish the right to privacy, which he almost certainly wanted to do. What he was able to do--and this shouldn't be underrated--he was able to stop the expansion of the right of privacy pretty much in its tracks. The court has been very reluctant to build on its privacy decisions of the '60s and '70s, and Chief Justice Rehnquist more than anyone is responsible for that reluctance.

DAVIES: The Rehnquist court also had an opportunity to do something truly rare and that is to, in effect, pick a president. In 2000, the Bush vs. Gore case came before the Supreme Court, and in the end resulted in the inauguration of President George Bush. What was Rehnquist's role then?

Prof. SUNSTEIN: We don't know the details, because what happened behind the scenes is not visible to the public. We do know that it was a five-four vote and that Rehnquist was one of the five. There's also reason to believe that, as chief justice, someone who everybody liked also, he had a behind-the-scenes role in helping to produce the court's majority. So there's no question that he was firmly in favor of President Bush's position in Bush against Gore, and he was probably an architect of the ultimate outcome.

DAVIES: He was known for a collegial style. He was well-liked by his colleagues, right?

Prof. SUNSTEIN: Rehnquist was a great guy, so people who know him, including, I'll confess, myself--I clerked there--are mourning his loss. He was a person of great kindness and personal generosity.

DAVIES: And had ways of communicating kind of where he was and where the court was going in a sort of a gentle way, didn't he?

Prof. SUNSTEIN: Yeah. He was a civilized person and he believed in respectful disagreement. There was some evolution with Rehnquist on that count. In his early days on the court, he was capable of being pretty rough in his dissenting opinions, never bitter and never enraged; he wasn't that type. But he could be rough and sarcastic. After he became chief justice in '86, his tone modulated a bit so that he did disagree strenuously, but he always acted as if those who disagreed with him were acting in good faith and their positions were wrong, but reasonable.

DAVIES: Are there any other areas of the law in which you feel he's had a particularly dramatic impact?

Prof. SUNSTEIN: Yeah. He's had a huge impact on separation of church and state. That's because he doesn't believe the idea of separation of church and state is constitutionally sound, so he attacked early on the wall of separation between church and state and he mostly succeeded in getting the court to be careful with that metaphor. The Supreme Court has upheld a voucher program in education, something that was very unlikely, one would have thought in the early '80s. The Supreme Court did that because of Rehnquist's attack on the notion of a wall of separation.

In criminal procedure, his influence has been immense. He really did not like the Warren court's expansion of constitutional rights protecting criminal defendants, and he succeeded in limiting the exclusionary rule which requires the exclusion of evidence that's obtained in violation of the Constitution. And he succeeded pretty much in stopping in its tracks the development of new rights to protect criminal defendants.

He much disliked the early efforts to understand the Constitution to protect a right to education, welfare and employment. In the early '60s and late '60s, there was some effort to understand the Constitution to protect these affirmative rights. Rehnquist eliminated that pretty much entirely.

He very much disliked the use of the equal protection clause to protect groups other than African-Americans, so he fought hard against the expansion of the equal protection clause to protect disabled people and older people and even women. He lost with respect to women and eventually he gave up that fight. But he may have won the war with respect to the equality principle because he did succeed in preventing the court from recognizing multiple other groups, like disabled people and older people, recognizing them as entitled to special constitutional protection against discrimination.

DAVIES: Well, Cass Sunstein, with the death of Chief Justice Rehnquist, President Bush has nominated Judge Roberts, who he had planned to place as an associate justice on the Supreme Court. He will now make him--wants to make him the chief justice. Explain for us what the role of the chief justice is in the functioning of the Supreme Court.

Prof. SUNSTEIN: The most important thing is the chief justice assigns opinions and kind of runs the deliberations among the justices, so the justices meet in something called conference in which they vote, and the chief justice kind of runs that meeting. He also assigns opinions, so if he thinks that he really wants, for example, Scalia to write this one, or Stevens to write that one, he can make that choice. Or, maybe most important of all, if he wants himself to write the major opinions, the most important ones facing the country, he can assign opinions to himself.

DAVIES: So something akin to a committee chair in Congress. By controlling the flow of the work, you influence its outcome.

Prof. SUNSTEIN: Yeah. There--he is a little like a committee chair, maybe a little weaker than a committee chair because, don't forget, the eight others on the court are pretty strong-willed people and they operate a little bit like independent law offices which they run. And so a chief justice can't really manage them in the way sometimes a committee chair is entitled to through agenda control. But the chief justice does have some power to move the law by assigning opinions to the people whose views he trusts most.

DAVIES: Now the previous chief justice, Warren Burger, was known for, I guess, what some might describe as a chaotic management style and was resented by some of the associate justices. I'm wondering whether a chief justice's style matters a lot in pursuing whatever legal agenda they have, and what Rehnquist's style was.

Prof. SUNSTEIN: Rehnquist had two things to his style. First, he was efficient, and second, he was nice, so he really made the trains run on time. He was not someone who let chaos reign in the least, and they appreciated that. It was as important that he was a nice person who was funny about how the trains had to be made to run on time rather than punitive or high-handed. So those two things working together made him a terrific administrator.

DAVIES: My guest is University of Chicago law Professor Cass Sunstein. We'll talk more after a break. This is FRESH AIR.

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DAVIES: We're speaking with University of Chicago law Professor Cass Sunstein. He's also the author of a new book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America.

Now if John Roberts is confirmed as chief justice, he will come into the court as its newest and youngest member, as the chief. Would that make any difference in terms of his ability to do his job, his influence, the respect he gets from other justices?

Prof. SUNSTEIN: I think the fact that he's been a presence around the court, because he's argued there so many times, dozens of times, will counteract the fact that he is as youthful, in terms of Supreme Court years, as he is, at the age of 50, so he's not inexperienced or unknown among the justices. On the other hand, it just is the case for any one new job, the hallways looked different from what you're used to and they make you maybe a little off-balance. There's a big learning curve. He has a lot to find out about internal management of the court. The justices certainly wouldn't like it if he asserted himself as their boss and it would be very surprising if he did anything like that.

DAVIES: Well, you know, Justice Rehnquist had, I guess--What?--a 15-year apprenticeship on the court as an associate justice before he became the chief in 1986. How common is it for a president to pick an outsider to move in as chief justice?

Prof. SUNSTEIN: Very, very common. In fact, what happened with Rehnquist is rare in our history. The vast majority of chief justices have been chosen by the president from outside the court. And the reason for that, if you think about it, is pretty clear. The president wants as chief justice, often, someone whom the president has particularly chosen as his chief justice. He doesn't necessarily want to go to someone who's been chosen by some predecessor president, even if the earlier president is someone the president likes, even if the earlier justice was chosen by the president who is the current president's dad.

DAVIES: Critics of Judge Roberts have said that the stakes are now higher, that he isn't simply being considered to ascend to the Supreme Court but to lead it. Should that make a difference in the confirmation process?

Prof. SUNSTEIN: Some. The fact that Judge Roberts has been nominated to be the number-one judge in the United States does raise the stakes some, certainly symbolically and to some extent in terms of substance, So it is right to say that this should be a serious rather than just celebratory confirmation process. The president's called for a dignified confirmation process. Dignified confirmation process doesn't involve jeering and accusations, but it also doesn't involve celebrations of personal narrative or simple sound bites that suggest someone's great. It suggests the need for serious discussion of the issues.

DAVIES: When you say it shouldn't involve celebrations of personal narrative, what do you mean?

Prof. SUNSTEIN: Well, what I mean is there's been some tendency in recent Supreme Court nominations to talk about where the person lived or what he overcame or what he did when he was a teen-ager or what obstacles he faced at some bad moment in his life with respect to money or health. And these are relevant to getting a picture of a personal life, but really we shouldn't turn Supreme Court nominees into heroes of docudramas on television. These are people who are going to have a big effect on our lives and rather than talking about what they did in high school or what they overcame, we should think about what they're going to do in their jobs.

DAVIES: When we spoke after Roberts was nominated as an associate justice, one of the things you said was that his views on a lot of critical constitutional issues were not publicly known, though they might be privately known, that is to say, he might have said things in conversation which provided insights that his opinions haven't. In the two months that have passed since, there have been a lot more of his writings and legal memoranda that have made public. Do we know more now about his stands on these key constitutional issues?

Prof. SUNSTEIN: We don't know more, I don't think, about where he now stands, but we do know more about where he stood when he was a young man. So one thing we've learned is that as a person in his 20s and 30s in the Reagan administration, he was very conservative. He was on the conservatives' side of the Reagan administration itself. Even in a conservative White House, he stood out as a quite-conservative lawyer. That's a bit of a surprise to some people.

DAVIES: Does it give you greater pause that he might be kind of one of the radical fundamentalist conservatives?

Prof. SUNSTEIN: I doubt that he's a radical. The fact that in his 20s and early 30s he took certain positions doesn't give us a lot of clues to what he thinks when he's 50. Probably the fact that he was a cautious and careful judge is more informative than the fact that he was, let's say, a careful but less than cautious lawyer as a young man. So I feel that we need a good discussion but that there's no reason to be attacking him or to be frightened of him.

DAVIES: The Democratic Senate majority leader, Harry Reid, urged President Bush recently to take into account Justice O'Connor's role as what he called a voice of moderation and reason on the court in selecting a replacement. It seems to be a kind of warning that he wants to see a centrist. I'm wondering, does the fact--I mean, you are also a professor of political science, I believe, in addition to law. Does the fact that President Bush is struggling in the polls on Iraq and his handling of Hurricane Katrina weaken his position in these potential confirmation battles? Does it make it more likely he will nominate a centrist?

Prof. SUNSTEIN: I think there's no question that it weakens his position, that because he's not quite as popular as he's been in the past, a contested Supreme Court nominee will not be received happily by moderates and liberals in the United States Congress. Even some Republicans will be unhappy, and their hands are stronger, too. On the other hand, this president is someone who's been occasionally willing to be quite tough, even in circumstances in which the politics aren't favoring him. So I don't know whether he's going to be more moderate because of the political difficulties. It's not even clear whether his own judgments on the judges at this stage are moderate or not. We don't quite know what the White House is like with respect to the Supreme Court. On that, the jury's still out.

DAVIES: You've said that it's important for the nation to have a serious confirmation process that looks at the important issues. I mean, the confirmation process has moved beyond that to, you know, a battle in the popular media, and we see advertising for and against justices, and we've seen them in the case of Judge Roberts. Is that a good thing? Is it good that more people are drawn into the fight over a Supreme Court justice?

Prof. SUNSTEIN: I do think it's good, that this should be a broadly democratic inquiry. And so the Supreme Court is very important, and in a way, the debate threatens the ridiculous where the president says, `I'm going to appoint people who follow the law. I'm not going to appoint people who make up the Constitution.' Well, no one wants to have people on the court who make up the Constitution or who don't follow the law, so that's uninformative. We need to have a discussion of what kind of judges we're actually getting, and if we're getting judges who read the Constitution as if it reflects the views of the extreme wing of the Republican Party, that's a problem, and the country needs to talk about that.

On the other hand, there is a risk of the sound-bitification of the Supreme Court process where liberal groups, let's say, characterize conservative appointees as if they hate civil rights or are against women or something, which is a ludicrous caricature of the position of conservative judges. So involving the democratic public, I think, is extremely good and very important, but we have to be careful to avoid accusations and caricatures.

DAVIES: I wonder if you've seen the television ads that have aired so far and what you think of them.

Prof. SUNSTEIN: Well, I've read about them, and I think they're pretty bad on both sides. They either make it seem as if Judge Roberts is, you know, perfect and the noblest human being maybe ever, or as if he's a kind of demon who is out to sabotage American democracy. And that doesn't help a lot.

DAVIES: Do you think the ads have an effect? I mean, do you think that they get people to call their senators and that matters?

Prof. SUNSTEIN: I think they do. I think that's why people run them. Judge Bork--there were legitimate questions raised about Judge Bork, but there were also illegitimate and false things said about Judge Bork, and some of the advertisements were quite unfair to him, and they had a big impact.

DAVIES: University of Chicago law Professor Cass Sunstein. He'll be back in the second half of the show. I'm Dave Davies, and this is FRESH AIR.

DAVIES: This is FRESH AIR. I'm Dave Davies, sitting in for Terry Gross.

My guest is Cass Sunstein, a professor of law and political science at the University of Chicago. He's written widely on issues of constitutional law. His latest book is Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America. In it, he argues that extremism on the bench, from the left or right, generally produces bad law.

Well, Cass Sunstein, I'd like to talk to talk about the points you make in your new book. And you look at judges--people often talk about activist judges and non-activist judges, but what you say is really important are certain perspectives that judges have on the Constitution, and you divide them into fundamentalists, minimalists and perfectionists. Briefly, what are the--what do these categories mean? Why are they important?

Prof. SUNSTEIN: OK. The minimalists are literally conservative. They believe in conserving, so the minimalists like to take small, little steps. They think that a Supreme Court decision ought not to settle things for all time. They think Supreme Court justices ought to avoid taking great stands on the deep meaning of liberty and equality. So when you think of minimalists, think of cautious, modest judges.

The perfectionists are the more ambitious liberal judges of whom we don't have any on the Supreme Court right now, but they included in our history Justice Earl Warren--Chief Justice Earl Warren, Justice Harry Blackmun, Justice William Brennan and Justice Thurgood Marshall. The perfectionists believe that the Constitution should be taken as an invitation to implement our broadest ideals as they are captured in the Constitution. So perfectionists want to perfect the Constitution by making it the best it can be, and that way of thinking is responsible for Roe against Wade, I believe, and some of our most ambitious decisions involving liberty and equality.

The fundamentalists, who include Justice Scalia and Justice Thomas, believe that the Constitution means what it always meant, and we ought to go back to the original meaning of the Constitution and follow it literally in terms of its meaning when it was originally ratified.

DAVIES: Now your book is primarily a warning on the dangers of a fundamentalist view in judges. You know, the appeal, I guess, of a fundamentalist view of the Constitution is that we are a nation of written laws. You know, we aren't guided by kind of mystic customs or spiritual beliefs, but the idea that we can decide upon a law, agree upon it, put it down in writing and then we all follow it. It's an appealing idea, that to go back in some respects intellectually to what the Constitution meant. Tell us a little bit about what this approach, this constitutional originalist approach would mean for some of the areas of the law. Let's just take, say, racial discrimination, segregation.

Prof. SUNSTEIN: It's clear that if we believe the Constitution means what it originally meant, the national government can engage in race discrimination however it wants. If it wants to segregate the schools in the District of Columbia, that's completely fine. If it wants to engage in racial profiling, that's completely fine. If it wants to have segregation in its own civil service, it can do that. If it wants to exclude Hispanics or African-Americans from government employment, it can do that. The reason that has to be the answer from the originalist's point of view is that the equal protection clause, which is the clause that forbids race discrimination, only applies to the states. It doesn't apply to the national government at all. So one of our very core values, that is the idea that the national government can't discriminate people on the basis of race, would be cast out the window immediately if we believe that the Constitution means what it originally meant.

DAVIES: Are there judges that are rendering decisions in that direction?

Prof. SUNSTEIN: Not on the race issue, so the fundamentalists are a little evasive about the true meaning of their theory of interpretation. It is true that Justice Thomas has said that the separation of church and state idea doesn't apply at all to the states, so as far as Justice Thomas is concerned, if a state wanted to establish an official religion, it could do that. That's a quite amazing view.

Justice Thomas' view, incidentally, is held both in good faith and with solid historical support, so he might not be right on the history, but he's certainly reasonable on the history, and if, in the end, the question is a historical question, then the separation of church and state might be out the window as far as states are concerned. That would fundamentally, so to speak, transform the United States in which we now live.

Many fundamentalists believe that Congress can't give discretionary power to executive agencies, so many of them believe that the Environmental Protection Agency and the Federal Communications Commission are unconstitutional. That would be an extremely big deal. That would unsettle institutions that we've had for a long, long time.

DAVIES: What about reproductive rights, the right of privacy?

Prof. SUNSTEIN: OK. The best argument the fundamentalists have made is that Roe against Wade has no constitutional basis and was essentially made up, and I actually think that is a respectable argument. But many of the fundamentalists would go much further and say there's no right of privacy in the Constitution at all, so in their view, the Constitution doesn't forbid government from releasing medical and financial information against people's will. It wouldn't forbid government from sterilizing people or from banning them from using contraceptives. So for Justice Scalia and Justice Thomas, the right of privacy really is a constitutional innovation without any basis in the document itself.

Now we have to say on behalf of Justice Scalia and Justice Thomas that they're being true to their own ideals here. As a matter of the original understanding, there wasn't a general right of privacy, but this would be a very big change in constitutional understandings as they've developed for over half a century, and I don't think that change counts as conservative.

DAVIES: Now are the fundamentalists consistent in favoring legal positions that are in keeping with the intent of the framers of the Constitution? I mean, do they have their history right?

Prof. SUNSTEIN: Unfortunately not always. At their best, Justice Scalia and Justice Thomas will follow history wherever it goes, and as I've said on the right of privacy, they are dead on in terms of the history. But there are areas where their historical interest is relaxed, and I'll give two examples. Justice Thomas and Justice Scalia have joined the constitutional assault on affirmative action programs. They have not said that whether states and localities have affirmative action is up to them in a federal system. They have not said that judicial restraint is the right approach in a system of separated powers. And then instead they've basically said no affirmative action ever.

Have they inquired into the history behind the 14th Amendment which are the basis for their decisions? Has either of them uttered even a sentence about the original understanding of the 14th Amendment? No is the sad answer to that question. There's a lot of historical work suggesting that affirmative action was just fine on the original understanding. But...

DAVIES: Let's--yeah, if I can just probe that for a second, fundamentalists are arguing that the meaning of the 14th Amendment is--was to remove race as a criteria in any way for rights and privileges recognized by the str--we should have a race-blind government. But in fact...

Prof. SUNSTEIN: Right, the history...

DAVIES: Right, that's their view. But, in fact, that's not what happened when the 14th Amendment was passed, was it?

Prof. SUNSTEIN: Right. Many fundamentalists assert that our Constitution is color-blind, and there can't be any racial lines drawn by government. But the Congress that ratified--that produced the 14th Amendment--was eventually ratified by the states--itself had a body called the Freedmen's Bureau, and the Freedmen's Bureau engaged in affirmative action. There was a lot of discussion of whether the Freedmen Bureau's special favors to the newly freed slaves was a form of discrimination. That was discussed. And the answer was special favors for newly freed slaves--in fact, special favors for people who were African-American--were just fine. The ultimate view in the country was this form of discrimination, so-called, wasn't discrimination in the bad sense. It was a way of equalizing.

Now maybe the people who said this were wrong. Maybe affirmative action is bad policy. That's a legitimate argument to make. But what is to me astounding is that Justice Thomas and Justice Scalia, who normally use history in good faith, don't even talk about history in asserting a principle of color-blindness, so those who like Justice Scalia and Justice Thomas and their method, they ought to be very happy with affirmative action, not as a matter of policy, but as a matter of constitutional law. If that's not right, then they have a lot of historical work to do, and they haven't done it yet.

DAVIES: My guest is University of Chicago Law Professor Cass Sunstein. We'll talk more after a break. This is FRESH AIR.

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DAVIES: We're speaking with University of Chicago Law Professor Cass Sunstein. His new book is Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America.

You know, one of the difficulties with applying an originalist's notion to the Constitution is that there are technologies and issues which didn't exist when the Constitution was crafted, and, you know, the guarantee against unreasonable search and seizure could not have anticipated a day when we had, you know, electronic eavesdropping and cell phones and, you know, the right to the due process clause which says you can't be deprived liberty of property without due process. Well, what does that say about things that didn't exist then, like welfare payments or disability payments or--how do fundamentalists deal with the issue of dilemmas which simply didn't exist when the Constitution was framed?

Prof. SUNSTEIN: They have some real problems. They know, at least in their best moments, that changes in society make their whole program a lot harder to implement. They tend to say, `Well, we're going to understand what they tried to do at the level that they tried to do it.' So if they were trying to say that you can't invade people's homes without a warrant, then if there's some new technology that actually invades people's homes, you've got to have a warrant. So they tried to describe what the framers were doing in a way that would pick up some changes but not others.

So let me give you an example. If the government uses technology to invade people's use if their telephones in their homes, the fundamentalists tend to think that's not OK. You've got to get a warrant for that. But if the government is discriminating against gays and lesbians, then that's not constitutionally banned because there's no principle that the Constitution has that forbids discrimination against gays and lesbians. Now these are tricky lines to draw, and they may draw the whole project of the fundamentalists into some question, but those are the kinds of lines they try to draw.

DAVIES: You argue in your book that the constitutional fundamentalists, those who believe that the original intent of the framers of the Constitution should be guiding our decisions, that that's a bad approach and that you favor what you've described as a minimalist approach in which the court does not make huge, sweeping leaps, but advances the law gradually. One decision which seems not to have done that was the 1973 Roe vs. Wade decision legalizing abortion. I mean, that was not a minimalist decision. It took a great leap in reproductive rights. Was it good law?

Prof. SUNSTEIN: No. Roe against Wade was a big blunder from the constitutional standpoint. The reason was that the court took some pretty small precedents and blew them up to create a very general right to choose abortion. Now many people like that as a matter of policy, and maybe it's right as a matter of policy, but the court used the Constitution much too expansively, much too quickly, and cast contempt on millions of Americans who believe in good faith that abortion is a murder of a human being. So this was really an abuse of the court's constitutional authority.

DAVIES: What should the court have done?

Prof. SUNSTEIN: Well, there were a couple of things that would have been reasonable. I think it would have been reasonable for the court to say that the interest in protecting the life of the fetus is adequate to justify the intrusion on the woman's right. I say reasonable, though I don't think in the end that would have been right. I think the best thing for the court to have done was--would have been to focus much more specifically on the laws at issue in that case. The law in Roe against Wade didn't have an exception for rape or incest, so the Texas law was a wildly overbroad effort to intrude on women's choice. There was an allegation of rape, incidentally, in Roe at the time, and the court could have just said narrowly that if you're going to protect the interests in fetal life, you can't do that by forcing women who've been victims of rape or incest to carry the child to term.

DAVIES: Well, I guess a lot of folks who regard, you know, the pre-Roe climate as one of terrible violations of women's reproductive rights would say, `But if you do that, I mean, you're just leaving millions and millions of women denied, you know, the constitutional protection that they think that they're entitled to.' I mean, are there times when you need a bold decision? I mean, take Brown vs. Board of Education in 1954.

Prof. SUNSTEIN: Well, there--the increase in the rate of legal abortions was higher in the three years before Roe than in the three years after Roe. It's worth pausing over that. That's the increase in the rate of legal abortions. How can that be, you might ask, if Roe made almost all abortions legal. The reason is that the country was rapidly liberalizing abortion. The court thought it was catching a wave, I think. That's why it didn't expect this decision to be so controversial. The point is just that when the court way oversteps where the country's going, it may not be doing something that's very productive.

Now Brown is an interesting contrast. It is true that Brown, getting rid of American-style apartheid, was a very bold and big deal, but Brown was anything--was not anything like Roe. Brown was the result of a slow and long sequence of decisions. By the time of 1954, the ground was carefully laid for getting rid of apartheid in the United States. The court had dealt time and again with so-called separate but equal schools, and said time and again, `This separate is not equal. That separate is not equal.' By the time of Brown, separate but equal was all but dead. The court could have built up a more general privacy right, maybe, but going slowly. If it was going to do that, that would have been the way to do it.

DAVIES: On Roe vs. Wade, if the court erred in taking a great leap in privacy in reproductive rights, what harm did it do?

Prof. SUNSTEIN: Well, it created a kind of polarized America that has infected not only our Supreme Court nominations, but our interactions with one another. The court's decision probably helped defeat the Equal Rights Amendment. It was a big blow to the feminist movement in the United States partly because it demobilized women and mobilized--in fact, helped create the Moral Majority. It polarized the country and gave tremendous energy to those who think abortion is a form of murder while eliminating the energy, for a time at least, for those who believe that the right to choose is a part of the--of what's necessary to ensure equality on the basis of sex in the United States.

Now I don't meant to say that the court as a policy matter was wrong, all things considered. Maybe it was right as a policy matter, all things considered. Certainly many people believe that. But the Supreme Court is not our national policymaker. I mean, my principle claim is the court would have done better in terms of its proper role in American government if it had gone slowly and let some kind of dialogue occur within the democratic process of the sort that was occurring then, of the sort that's occurring now with respect to discrimination on the basis of sexual orientation. We've seen massive changes in the country on sexual orientation issues in the last decade, and the Supreme Court, fortunately, has played just a small, cautious role.

If the court took a big stand on discrimination on the basis of sexual orientation now, it might polarize the country terribly and cause all sorts of bad consequences. So I do believe the court didn't serve the country very well, but more important than that, the court overstepped its proper bounds even if it did serve the country well.

DAVIES: Among these competing approaches to the Constitution, where would you put Justices Rehnquist, O'Connor and Judge Roberts?

Prof. SUNSTEIN: O'Connor's the easiest. She is a minimalist. Her approach to the law is one case at a time. She does not believe in big theories. She does not believe in the announcement of rules. She hopes to reach decisions that are small and narrow and that lots of people can agree on despite their theoretical disagreements. So she is a quintessential minimalist, though a minimalist of the conservative kind. There are also some liberal minimalists.

Rehnquist is poised between minimalism and fundamentalism, but he's more like a fundamentalist. He hasn't quite signed on to the historical progr