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Assessing the New Judicial Minimalism

127 Pages Posted: 17 May 2006  

Christopher J. Peters

UA School of Law

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

Suggested Citation

Peters, Christopher J., Assessing the New Judicial Minimalism. Columbia Law Review, Vol. 100 p. 1454, 2000. Available at SSRN: https://ssrn.com/abstract=902043

Christopher J. Peters (Contact Author)

UA School of Law ( email )

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Akron, OH 44325-2901
United States
330-972-7343 (Phone)

HOME PAGE: http://law.uakron.edu

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