Principled Minimalism: Restriking the Balance between Judicial Minimalism and Neutral Principles

96 Pages Posted: 14 Sep 2004  

Jonathan T. Molot

Georgetown University Law Center

Abstract

Scholars who grapple with the Rehnquist Court's activism understandably have relied on the work of those who grappled with the Warren Court's activism several decades ago. In particular, they have built upon the work of Alexander Bickel, responding to the countermajoritarian difficulty by emphasizing just how much courts should leave unresolved. But this contemporary emphasis on judicial minimalism overlooks half of an important tradition. From the time of the Founding right up until Bickel, judicial power was defended based not only on its narrowness, but also on the expectation that judges would base their decisions on law. The other half of this tradition, captured by Herbert Wechsler in his famous Neutral Principles article, has been largely overlooked. The goal of this Article is to correct the current imbalance between the neutral-principles and minimalist traditions. The Article employs institutional and historical analysis both to cast doubt on the wisdom of the recent shift toward minimalism and to support a jurisprudence of principled minimalism in its place.

Keywords: neutral principles, judicial minimalism, judicial activism, Bickel, Wechsler

JEL Classification: K10, K40, H11

Suggested Citation

Molot, Jonathan T., Principled Minimalism: Restriking the Balance between Judicial Minimalism and Neutral Principles. Virginia Law Review, Vol. 90, No. 7, pp. 1753-1847, 2004. Available at SSRN: https://ssrn.com/abstract=590642

Jonathan T. Molot (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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