Assessing the New Judicial Minimalism

Abstract

In this article, which has been published in slightly revised form at 100 Colum. L. Rev. 1454 (2000), I critique some recently prominent arguments for "judicial minimalism" in constitutional decisionmaking. Current minimalist arguments, I contend, are primarily "policentric," that is, focused on the role the judiciary can play in bolstering the accountability and deliberativeness of the political branches. Drawing in part on a previous article, I offer an alternative approach to minimalism that is "juricentric" - focused on the inherent democratic legitimacy of the adjudicative process and the unique competence of that process to produce decisions about individual rights. I argue that a juricentric approach supports what I call "procedural" minimalism: the presumptive practice of deciding constitutional cases in the "narrowest" and "shallowest" way possible. I also argue, however, that a juricentric approach undermines the case for "substantive" minimalism: the presumptive practice of deferring to the political branches in deciding the issues necessary to resolve constitutional cases.

Keywords: judging, judges, judicial, minimalist, minimalism, supreme court, O'Connor, Sunstein, Bickel, judicial review, constitutional law, constitution