Sunstein 2005 Testing Minimalism: A Reply

2023-10-16: Sunstein, Cass Testing Minimalism: A Reply (PDF) 2005

• Minimalists are unambitious along two dimensions.
• First, they seek to rule narrowly rather than broadly.
• Second, minimalists seek to rule shallowly rather than deeply, in the sense that they favor arguments that do not take a stand on the foundational debates in law and politics.
• I am extremely grateful to Neil Siegel for his generous and 6careful analysis of my claims about minimalism and the Supreme Court. Siegel offers three objections to those claims.
• First, he contends that minimalism has not been precisely defined, and that the presence of diverse and inconsistent definitions makes it difficult to test the claim that any particular court, or any particular decision, is minimalist in character.
• Second, Siegel claims that the most usable definition of minimalism is palpably inconsistent with Court's behavior during the 2003 term (and probably more generally).
• Third, he contends that minimalism, suitably defined, is unattrac­ tive, among other things because it violates the Supreme Court's roles as guide and as guardian.
• I. Minimalisms
• First, procedural minimalism entails an effort to limit the scope and ambition of judicial rulings; ...
• ... minimalism's substance, which entails an identifiable set of substantive commitments ....
• Second, procedural minimalism as a general category should be distinguished from the subcategory of democracy-forcing minimalism, which involves an effort to issue narrow rulings that do not mandate ultimate outcomes but that force decisions by politically accountable actors.
• Third, denials of certiorari and justiciability doctrines, by which the Court refuses to reach the merits, should be distinguished from narrow and incompletely theorized judgments, by which the Court resolves the merits but without much foreclosing the future.
• [empirical evaluation for the court's decisions required to see if the court is minimalist]
• II. Minimalism Falsified?
• Let us identify a continuum of possible outcomes, from
  • a denial of certiorari, to
  • a refusal to reach the merits, to
  • a fact-bound decision that goes barely beyond the immediate parties, to
  • a decision that states an identifiable if narrow rule with an identifiable if shallow rationale, to
  • a decision that offers an identifiable but broad rule, and so on, culminating in
  • a truly maximalist (if also unfathomable) decision that resolves all questions for all time by reference to the most fundamental of principles.
• III. Is Minimalism Bad?
• Siegel fears that minimalist decisions often leave important problems to lower courts, not to citizens and their representatives, and to that extent such decisions do not promote democratic goals.
• In the end Siegel and I agree that the argument for minimalism is strongest in an identifiable class of cases: those in which American society is morally divided, those in which the Court is not confident that it knows the right answer, and those in which the citizenry is likely to profit from more sustained debate and reflection.
• If Siegel and I have a normative disagreement, it is because he is more confident than I am about what he calls "the Supreme Court's role--and comparative advantage--in our constitutional system of separate but interrelated powers."
• The Court's conception of what principle requires, and its understanding of what it means to defend "minority rights, "should not be taken as unerring. From the moral point of view, insulation from majoritarian pressures is sometimes the problem, not the solution.