Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America
Cass R. Sunstein
Basic Books www.basicbooks.com 281 pp., $26

Federal judicial appointments are among a president's longest-lasting legacies. Conservative judges appointed by presidents Ronald Reagan, George H.W. Bush, and George W. Bush now dominate the federal courts, and they constitute a majority on most federal courts of appeals. Cass Sunstein's new book, Radicals in Robes, seeks to describe these judges' agenda and show why it is bad for the country.

Sunstein, a professor at the University of Chicago Law School and one of the nation's most prolific scholars, accomplishes his goal by contrasting four models of constitutional interpretation. Fundamentalists are those who believe that the Constitution's meaning was fixed when it was adopted and that change is possible only through the amendment process. Under this approach, constitutional interpretation is exclusively about finding the original meaning of constitutional provisions. Justices Antonin Scalia and Clarence Thomas are both legal fundamentalists.

Perfectionists take a second approach. Sunstein writes that "perfectionists want to make the Constitution the best that it can be." He identifies the Warren Court as exemplifying this approach and equatesit with the liberal jurisprudence of justices like William Brennan and Thurgood Marshall.

A third approach is minimalist. Minimalists, Sunstein says, "want to proceed one step at a time. They are willing to nudge the law in one or another direction, but they refuse to promote a broad agenda, and are skeptical of 'movement judges' of any kind." Sunstein identifies himself as a minimalist and says it was the theory of justices like Felix Frankfurter and, more recently, Sandra Day O'Connor and Anthony Kennedy.

The final approach is majoritarianism. It stresses deference to the elected branches of government and a minimal judicial role in overturning the decisions of popularly elected officials. Sunstein identifies Justice Oliver Wendell Holmes as a majoritarian but says there are no consistent majoritarians on today's Supreme Court.

The book argues that fundamentalism is dangerous and undesirable, and that minimalism is the most attractive of the four approaches. The first two chapters describe the theories and criticize fundamentalism. The remaining eight chapters focus on specific areas of constitutional law and how each would be resolved under the four models of constitutional interpretation. Sunstein considers topics such as privacy, marriage rights, affirmative action, national security, separation of powers, church and state, and gun control.

The strength of the book is Sunstein's powerful critique of fundamentalism. He shows that it would dramatically change constitutional law by eliminating the application of equal protection to the federal government, ending constitutional protection against gender discrimination, allowing state-mandated racial segregation, ending the application of the Bill of Rights to the states, permitting poll taxes and malapportionment, and allowing official state churches. Most federal environmental laws would be unconstitutional under fundamentalism, andmost state regulations would be deemed impermissible takings of private property.

At the same time, Sunstein shows that some judges in the fundamentalist camp are intellectually dishonest. One of the most powerful chapters concerns affirmative action; Sunstein shows that the original meaning of the Fourteenth Amendment unquestionably would allow it. Fundamentalist justices, like Scalia and Thomas, abandon their devotion to original meaning to advance their conservative political agenda.

The book, however, is less successful at defending Sunstein's own vision for constitutional interpretation: minimalism. He never offersa clear definition of this approach. Obviously, minimalists rule narrowly and without an overall theory of constitutional interpretation,but Sunstein never explains what distinguishes a minimalist decisionfrom a perfectionist one. The reader has a sense that minimalist decisions are simply those that Sunstein likes.

Nor does he develop a critique of what he calls perfectionism, though he disparages it in passing throughout the book. He says, for example, that he disagrees with much of what the Warren Court accomplished, but he doesn't explain why. Perhaps more important, Sunstein defends narrowness in judicial rulings as an end in itself but never tells us why this should be of paramount importance.

The book is well written and easy to read. Sunstein uses excellent examples throughout to illustrate his points. It is an important contribution to the literature and deserves to attract a wide audience because it shows the truly radical agenda of the conservative judges who sit on the federal courts.

Erwin Chermerinsky is the Alston & Bird Professor of Law and Political Science at Duke University School of Law.

Copyright 2006 Association of Trial Lawyers of America
Copyright 2006 Gale Group, Inc.