A Theory in Search of a Court, and Itself: Judicial Minimalism at the Supreme Court Bar

Abstract

Cass Sunstein has prominently and provocatively advocated a theory of judicial minimalism. He has claimed that minimalism provides both an accurate descriptive account of how the Supreme Court decides constitutional cases and a persuasive normative theory of how the Justices should exercise their power of judicial review. In fact, he has written that the October 2003 Term demonstrates the Court's commitment to judicial minimalism.

In this Article, I demonstrate a deep tension between Professor Sunstein's aspiration that minimalism serve as an empirically testable (and thus descriptively accurate) account of the Supreme Court's work, and his ambition that minimalism provide a convincing normative theory of judicial review. I begin by inquiring whether minimalism accurately describes many of the most important decisions from the October 2003 Term. In order to investigate that question, however, I must give minimalism an operational definition that is empirically falsifiable. Part I derives, from among the possibilities evident in Professor Sunstein's descriptions, a definition focusing on the narrowness and shallowness of judicial decisions. This is the only version of minimalism that does not incorporate criteria so vague and contestable as to render the theory nonfalsifiable and thus empirically useless.

Part II demonstrates that, so understood, the theory cannot account for many of the Court's most significant rulings from the October 2003 Term. Part III shows that the version of judicial minimalism most susceptible to empirical testing has little attraction as a normative account of how the Court should resolve constitutional controversies.

A brief conclusion identifies some rehabilitative options potentially left open to judicial minimalism going forward. One is to test more modest descriptive claims about Supreme Court decisionmaking. Another is to embrace a contextually justified apprehension of the valuable lessons of prudence that historically have animated constitutional theories evoking the work of Alexander Bickel. Those powerful themes are present in Professor Sunstein's work.