Prof. McGinnisMcGinnis is probably the best law professor blogger not permanently ensconced at the Volokh Conspiracy. He is always either right or interesting and usually both. over at the Law and Liberty blog makes a non-original, but far too often overlooked point. Resisting the temptation to quote the whole thing, here are a few paragraphs:
At the beginning of this term of the Supreme Court, Cass Sunstein has praised judicial minimalism. Professor Sunstein argues that the justices should decide cases as narrowly as possible:
Minimalists … insist on small steps and narrow, unambitious rulings. They want to resolve the specific problem at hand, but without pronouncing broadly on liberty or equality, or on the system of checks and balances.So described, minimalism is the antithesis of a principled jurisprudence. First, minimalism does not offer a method for discerning the Constitution’s meaning. One does not need to be an originalist who believes that the meaning of the Constitution is fixed at the time it was enacted to recognize that an interpretive theory has to give account of how it is following the meaning of the Constitution. It is that meaning which should govern the case, and the relevant principles may be either broad or narrow depending on the meaning. …
Second, minimalism is incompatible with the rule of law. Deciding cases based on their peculiar facts gives little guidance to citizens as to what their rights and obligations are. Indeed, the reductio ad absurdum of minimalism is to decide the case of A v. B for A or B without giving any reasons at all: that approach surely resolves the case by making as little law as possible! More generally, insofar as a case emphasizes particular facts for the sake of a narrow ruling, its holding provides little help for those trying to figure out what the Court will do in the next case.
One issue is of course whether Sunstein is as sincere in his advice as he is undoubtedly clever. Can we expect to see forthcoming articles from Sunstein criticizing, for example, Brown v. Board of Education for indulging in general discussions of equality, rather than merely ruling that for some fact-specific reason, Linda Brown ought to have been admitted to Sumner Elementary or perhaps condemning Obergefell v. Hodges for going beyond declaring that James Obergefell was allowed to marry John Arthur?
Even setting this aside, Sunstein’s judicial minimalism reflects his broader premise (shared by such as Justice BreyerOutside the legal profession this view is also shared by the likes of Dylan Matthews and Erich Ludendorff. The principal author of the Constitution took a rather different view and is hence condemned.) that high-level government officials (like Sunstein, at times, or Breyer), be they bureaucrats or judges, are people so good and so clever that they should be permitted to decide any issue as they deem fit at the time without being troubled overly much by such constraints as laws, general principles, or consistency. For those who share this premise, Sunstein’s and Breyer’s jurisprudence must be quite attractive.
