Radicals in Robes Why Extreme Right-wing Courts are Wrong for America by Sunstein, Cass R. ( Author ) ON Sep-07-2006, Paperback (Englisch) Taschenbuch – 7. September 2006
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Cass Sunstein takes head on the predominant activist judicial philosophy in this clearly written study and tries to explain the reason why on legal grounds it is both highly suspect as an interpretative method and undesirable in its potential effects. He begins by insisting that "liberal" versus "conservative" is an extremely unhelpful distinction. He instead defines four methods of judicial interpretation: 1) Perfectionism, which attempts to make the constitution as good as it can be, 2) Majoritarianism, which attempts to reduce the role of the court and overwhelmingly favor legislation by elected officials, 3) Minimalism, which abjures making decisions about large principles and issues, and instead seeks to make small incremental changes in the constitution by making very narrow judicial decisions, and 4) Fundamentalism, which holds that the constitution must be interpreted according to the intent of the ratifiers (not the framers) of the constitution. Sunstein points out that while Perfectionism has played a significant role in the past (indeed, the greatest American Justice ever, John Marshall, could be described as a Perfectionist, while many of the major decisions, such as Brown v. Board of Education, can be described as Perfectionistic in nature), no one currently on the supreme court can be so labeled. Likewise, though one of the most famous of all Supreme Court justices, Oliver Wendell Holmes Jr., could be described as a Majoritarian, no one today either on the Supreme Court or the Appeals courts holds that position. Most justices, according to Sunstein, take a Minimalist position, which is the approach he defends. But he believes that the stability and integrity of the American legal system is being threatened by a growing number of Fundamentalist judges, and the book is largely a defense of Minimalism and a critique of Fundamentalism.
For the most part Sunstein restricts himself to purely legal considerations, though he hints at a truth that most journalists would point out rather more strongly than he does: that Fundamentalism is primarily a way of getting a political agenda instituted by circumventing the electoral process. He points out that it is distressing to see how constantly Fundamentalists, who allegedly argue for a nonpartisan reading of the Constitution, actually hew rather closely to the most radical ideas of the far right of the Republican party. Though he acknowledges this to be the case, for the most part he concentrates on more purely considerations. For instance, the Fundamentalists insist that every decision must be based on the text of the Constitution as understood by the ratifiers, which means that decisions much be based on the best possible historical understanding of the words of the constitution. The bulk of the book consists of Sunstein looking at a number of the most pressing constitutional issues-e.g., the right to privacy, the right to marry, race and affirmative action, national security, the separation of powers, the establishment clause, free speech, and second amendment issues-and analyzing what the effect of adjudicating them from a fundamentalist position would be. He finds that Fundamentalism is often inconsistent with the best historical understanding-in fact, often formulating positions in direct opposition to the historical record, such as in free speech issues or affirmative action-and almost always undesirable or imprudent.
One example of the historical side of his argument will suffice. Fundamentalists insist that the Second Amendment establishes the right for individuals to own guns. But an examination of the history reveals much that contradicts this. For instance, it is the lone amendment that is directed at providing the individual states a right against the federal government, namely, the right to form state militias. Moreover, the only major Supreme Court decision ever undertaken (United States v. Miller) affirmed the right of Congress to limit the kinds of weapons that could be sold and owned. Perhaps most telling of all, the Supreme Court ruled in 1886 that the Second Amendment was the only one of the Bill of Rights that was not incorporated in the Fourteenth Amendment. In other words, the Court has always treated the amendment as treating the relationship between the states and the federal, and did not involve individuals at all. (Obviously, gun ownership can still easily be legal: there is simply no clear constitutional proof that it is a right guaranteed by the Bill of Rights as the NRA so vigorously asserts.) But in looking at this issue, Fundamentalists completely ignore the historical record which they state is of such crucial importance.
Much of Sunstein's argument hinges on the potential chaos that could result if Fundamentalists had their understanding of the constitution become normative. In essence, he is arguing that Fundamentalism could produce results that are undesirable, imprudent, and destructive. Do we really want a nation in which the federal government could discriminate on the basis of race or gender? Do we want any restrictions on campaign financing to be made illegal? Do we want the right to privacy eliminated? Do we want it possible for states to establish an official state religion (e.g., Mormonism in Utah, probably the only state where there is a single dominant church)? Do we want advertisements to be completely unregulated? Do we want the Clean Water Act to be stricken down? All of these things could take place on Fundamentalist grounds. Obviously, very, very few Americans would like to see much or any of this take place. In other words, Fundamentalism could lead to a nation that few would desire. And surely the point of a constitution is providing a stable, fair government that promotes the general welfare. On this test, fundamentalism would obviously fail.
My lone criticism of the book lies with a fact that Sunstein only lightly touches upon. This concerns the likelihood that we could all come up with an agreed upon historical understanding of the phrases of the constitution. If one reads a great deal of early history of the United States, one of the first things that one is struck by is how the first generation argued about what was and was not permitted by the constitution. Remember, these were debates among the framers and ratifiers of the constitution. Washington, Hamilton, Adams, and Madison (I leave out Jefferson because he was neither a framer nor a ratifier) had sharp disagreements about what the constitution did or did not allow. If these men had no ready agreement about the Constitution, how could we possibly today come to any agreement? I think Sunstein could and should have made much more of this. Even if Fundamentalism were desirable, it would be impossible. I heartily agree with Sunstein on many other points. He asks why we should desire to set in granite the understanding of men from a couple of centuries ago who had very, very different beliefs about women, race, economics (indeed, most of the founders could be better understood as mercantilists than capitalists), religion, and voting (most felt only property owners should be able to vote) than we do. Sunstein doesn't make this point, but clearly tying ourselves stringently to a late 18th century understanding of the constitution would be to tie ourselves to something that would grow increasingly irrelevant. We have a great constitution, but it must provide the framework for our changing understanding of privacy, race, and gender, not dictate the primacy of their outmoded views.
I recommend this in the strongest possible terms, especially now when we will see the Senate closely examine the judicial philosophy of two new members of the Supreme Court.
Addendum: As I write this on 9/13/05 I am listening to the confirmation hearings of John Roberts to become the new chief justice of the United States Supreme Court. Interestingly, Sen. Orrin Hatch explicitly mentioned Sunstein's book and his distinction between the four types of judicial philosophy, asking Roberts which of the four would best apply towards him. Roberts declined to subscribe to any label, though all of his answers so far and his insistence on being a "modest" judge would seem to lean heavily towards Sunstein's "minimalist" label. One can hope that this is correct, though one is reminded that Clarence Thomas, the most activist justice in memory, came across as a "modest" judge in his hearings just over a decade ago.
There are two things this book does particalarly well. First, it points out the absudities that would result from truly following a fundamentalist apporach to constitutional interpretation. Second, it demonstrates that the fundamentalists currently on the bench are often "false fundamentalists," abandoning fundamentalism when the result is contrary to what those on the polical right wing desire. Sunstein shows, for instance, that a fundamentalist (or originalist, or traditionalist) reading of the 14th Amendment would favor affirmative action programs, while those justices claiming loyalty to original intent ignore this to acheive the result the Republican party requires. Indeed, it appears that fundamentalists are "perfectionists" of the right: activist judges who are result-oriented under the guise of constitutional interpretation.
This book argues for minimalism. But its defense of minimalism is not especially strong. It comes down to this : The only real choice today is between fundamentalism and minimalism and fundamentalism is awful; thus, minimalism is the way to go. While there is no doubt that fundamentalism is disastrous, not much is offered proactively in support of minimalism or to give strong reasons why majoritarionism or perfectionism should be rejected in its favor. To his credit, Sunstein is upfront that this book primarly argues in favor of minimalism as opposed to fundamentalism, but there is still a lot left out of the discussion. Certainly, minimalism appears sane when the only other choice is fundamentalism; however, these are not the only two choices.
I subtracted a star because the book is not completely trustworthy. Page 93's reference to "Justice William Kennedy" caused me to re-read many passages carefully to make certain I was properly understanding what Sunstein was attempting to convey and that he had not erroneously left out an important word or two. Other minor errors leave the reader to wonder if what is printed is exactly what is intended. In addition, the book as a whole, but particulary the introduction, suffers from abundant over-use of "of course" and "actually." The introduction reads as if it was dictated but never proof read in this respect.
Cass Sunstein is a well-known academic, whose articles have proven extremely illuminating and helpful to many. This book, however, has failed miserably to meet the lofty standards that Sunstein's prior works set. Though his articles on the regulatory state have changed the way I think about statutory interpretation, Sunstein failed to persuade me even slightly in this book.
The author strongly criticizes "fundamentalism" (perhaps better known as "originalism"). He warns the reader that because "originalism" is aligned so closely with conservatives'/Republican's political views, that it must be the case that the originalist view suffers from bias.
The author does not anticipate that some readers, such as myself, are socially liberal, and yet find textualism and originalism appealing. His arguments thus failed to speak to me-- he tells the reader that originalism= conservatism, and yet i believe in originalism, but am socially liberal. What gives?
He then takes cheap shots on originalism, which he should know better than to make. He marches out a parade of horribles that would result if originalism were accepted. For example, he argues that school segregation may be permissible, the EPA's authority may be proscribed, etc. etc. He does not take into account many originalists' view (including my own), that if it were not for the Court's legislating from teh bench, that the political process (via Constitutional amendments) would prohibit discrimination, and expand the scope of agencies' powers.
His myopic view is all the more startling when one reads his defense of "minimalism" (Sunstein's preferred view). Sunstein states that we should accept the Constitution as it is currently, but that one should take "minimalist" approaches in providing any further changes. The critics argue that Sunstein is simply happy with the current Constitution, and ergo espouses the "minimalist" view, to which he responds:
"Suppose perfectionsits really can show that their approach produced a number of decisions that are desirable and that no other approach could have generated. The principled minimalist responds: So what? If the Court had not acted, the democratic process might have done so instead."
Yet, in hypocritical fashion, Sunstein launches into a tirade against originalism, arguing that that approach reaches undesirable results. As an originalist, I'd argue: "If the Court had not acted, the democratic process might have done so instead." Sunstein does not allow originalists this defense, and it is shocking that he would nonetheless use that argument himself.
This is a better book than you will find by the likes of Ann Coulter or Michael Moore. It is not a bad book, but just very, very disappointing to those who expected more from the author. Given Sunstein's unbelievably brilliant law review articles, I'm shocked and disappointed by his patently biased discourse in this book. I refuse to believe that he, in good faith, actually believes the arguments he makes (he argues, for example, that originalism is tantamount to the "rule of the dead"; yet, Brown vs. Board of Education was written by judges who are now dead-- would he suggest that we ignore that decision because those judges are dead? Surely a man as smart as he understands that we respect legal texts because of the process they went through to attain the status as binding law, and not out of reverence for the dead).
I could not help but feel that this is simply a thinly veiled attack on conservatives; Sunstein had an axe to grind with conservative legal scholars and probably thought that writing a book for a wide audience defaming them and misrepresenting their views would allow him to blow off some steam. But although I do not mind people attacking conservatives-- i'm a minority/atheist/social liberal who also cannot stand "jesus freaks" -- when an author as accomplished as Sunstein parades a political attack as an academic work, I cannot help but be disappointed. I give this book 2 stars, and not 1 star, because people who feel insecure in their originalist views should read this book to see that many of the criticisms of originalism are quite specious. Sunstein takes his best shot at originalism and fails badly, and an originalist should feel good after finding out that this is the best that the leading "non-originalist" can do.
I do hope that Sunstein writes again on the topic-- I would be very interested in reading what he would say about a subject like this if he made a conscious effort to remove his political views.
Here's what wikipedia says about Sunstein:
Sunstein is a proponent of judicial minimalism, arguing that judges should focus primarily on deciding the case at hand, and avoid making sweeping changes to the law or decisions that have broad-reaching effects. Some view him as liberal, despite Sunstein's public support for George W. Bush's judicial nominees Michael W. McConnell and John G. Roberts,, as well as providing strong theoretical support for the death penalty. Much of his work also brings behavioral economics to bear on law, suggesting that the "rational actor" model will sometimes produce an inadequate understanding of how people will respond to legal intervention.....The interpretation of federal law should be made not by judges but by the beliefs and commitments of the U.S. president and those around him, according to Sunstein. "There is no reason to believe that in the face of statutory ambiguity, the meaning of federal law should be settled by the inclinations and predispositions of federal judges. The outcome should instead depend on the commitments and beliefs of the President and those who operate under him."
The central premise of "Radicals in Robes" is the sweeping theoretical opinions are not proper judicial behavior, and the both `fundamentalist' judges on the right and `perfectionist' judges on the left often err in rendering such opinions. Rather, the two "elected" branches of the government - the legislature and the executive - should be the formulators of public policy and the generators of social change, if change is to be, while the judicial branch should defer to their consensus and limit its decisions to specifics of case law. The subtitle of this book - "Why Extreme Right-Wing Courts are Wrong for America" - is really only hald of Sunstein's subject. In his view, extreme left-wing courts would be equally WRONG for America, but the probability of such courts emerging currently is too slight to be of concern. Judges on the `left' - perfectionist liberal judges - are as much of a threat to good judicial practice as `conservative' ideologists, especially those who insist on originalist or fundamentalist `restoration' of the exact interpretation of the Constitution that prevailed at the time of Ratification. Sunstein points to Roe v. Wade as a faulty and improper assertion of `perfectionist' ideology - even though he himself supports the preservation of `choice' as it is now accepted, On the other side, Sunstein regards the Rehnquist Court's sweeping decisions on issues of affirmative action as equally faulty examples of reckless judicial activism, particularly because the committed `originalists' on the Court, most notably Justices Scalia and Thomas, disregard their own admontions to adhere to historical evidence of the `original' meaning of the Constitution and intentions of the ratifiers. They become "false fundamentalists", in Sunstein's opinion, by advancing the ideological agenda of the extreme Right of the Republican Party. Any justice whose decisions inveterately match the platform of either party, Democratic or Republican, must surely be suspect of the sort of `judicial activism' that skirts around the will of the people expressed through elections. Justice Scalia earns some praise from Sunstein for showing minimalist restraint on at least a few issues, but Justice Clarence Thomas is patently a `radical in robes,' abusing his judicial position as an advocate for a political constituency. Fundamentalism/originalism is not, according to Sunstein, an indefensible or irrational position per se, but incremental minimalism is both more efficacious in the long term and more in keeping with America's core democratic values. Several times in his text, Sunstein holds up Justice Sandra Day O'Connor as an exemplary `minimalist' despite her general disposition toward conservatism. This book was published in 2005, before the fundamentalist-leaning Chief Justice Rehnquist was replaced by the rigid fundamentalist John Roberts, whose appointment, ironically, Sunstein supported.
Here are some characteristic passages from Sunstein's own writing:
On Affirmative Action: a judicial "minimalist approach is clearly preferable to the extraordinarily intrusive, and constitutionally shaky, position urged by fundamentalists. With respect to affirmative action, a general posture of judicial restraint would NOT be hard to defend. Fundamnetalists, concerned with history, should certainly favor that posture ... On affirmative action, fundamnetalists have violated their own commitments, voting to strike down programs [established by elected legislatures] without making the slightest inquiry into history." Sunstein musters quite ample evidence that affirmative action programs of various sorts, designed to redress malevolent social inequities, have precedents back to the earliest federal administartions, as well as evidence that the express and expressed intention of the Civil War Amendments was precisely to foster affirmative intervention on behalf of the liberated-slave population.
On the conflict between National Security and Personal Liberty: "It is pretty easy to dispense with Liberty Perfectionism [i.e. hard-nosed libertaraian and liberal resistance to any curtailment of individual liberty]. Nationl Security Fundamentalism has much more appeal to contemporary judges, but it has its own problems. Most important, its reading of the Constitution is implausible ... (it) neglects the fact that under many circumstances, the executive branch is most unlikely to strike the right balance between security and liberty." Broadly, Sunstein's reading of the Constitution stresses the `checks and balances' - the triangulated division of power - incorportaed in the document by its authors. By examining both Article One and Article Two, Sunstein demonstrates that the "War Power" is not exclusively the prerogative of the Executive, but rather a carefully two-legged balance/check, with the Legislature having the larger share of mandate.
More on Liberty: Sunstein quotes the views of Frederick Hayek, the Austrian paraclete of libertarian free-market small government economics. "Hayek writes `how comparatively innocuous, even if irksome, are most such restriction imposewd on literally everybody, as ... compared to those that are likely to be imposed only on some!" Sunstein and Hayek are referring to intrusions on the liberty of racial, religious, political or philosophical minorities -- intrusions ranging from the racial profiling currently imposed by Arizona law to the unreasonable and unconstitutional persecution of pacifists during and after WW1.
There's a lot of substance to this book, but it's not an academic text or a text for scholars only. The writing is plain and simple, not encumbered with allusions or flowers of literary eloquence, not burdened with the sort of vocabulary that I myself would probably tend to use. Anyone who can handle the front page of USA Today can handle Sunstein's prose. Sunstein reiterates some points more than an impatient reader like me might wish, but his repetitions serve to drive his main points home and to confirm the reader's understanding of them.
As I implied at the beginning of this review, Sunstein's views on constitutional law have significantly influenced the views of President Barack Obama, and there are passages in both of Obama's published books that virtually replicate the thoughts of his older colleague Sunstein. I can't recognize any major discrepancy between Obama's and Sunstein's judicial ideals. Obdurate critics of Obama, chiefly from the reactionary Right but also from the Left, would do their own minds and the Mind of America a service by reading this moderate exposition of constitutional theory. And they might want to correlate their image of Barack Obama with the remarkable successes he's posted with his Lame Duck Congress during November and December of 2010, persistently striving for bi-partisan overlapping consensus.