Assessing the New Judicial Minimalism
Christopher J. Peters
University of Baltimore School of Law
Columbia Law Review, Vol. 100 p. 1454, 2000
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.
Number of Pages in PDF File: 127
Keywords: judging, judges, judicial, minimalist, minimalism, supreme court, O'Connor, Sunstein, Bickel, judicial review, constitutional law, constitutionAccepted Paper Series
Date posted: May 17, 2006
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