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Against Judicial Minimalism

At the beginning of this term of the Supreme Court, Cass Sunstein has praised judicial minimalism. Professor Sunstein argues that the justices should decide cases as narrowly as possible: “Minimalists . . .  insist on small steps and narrow, unambitious rulings. They want to resolve the specific problem at hand, but without pronouncing broadly on liberty or equality, or on the system of checks and balances.”

So described, minimalism is the antithesis of a principled jurisprudence. First, minimalism does not offer a method for discerning the Constitution’s meaning. One does not need to be an originalist who believes that the meaning of the Constitution is fixed at the time it was enacted to recognize that an interpretive theory has to give account of how it is following the meaning of the Constitution. It is that meaning which should govern the case, and the relevant principles may be either broad or narrow depending on the meaning. For instance, if one follows the original meaning that the term “session” in the Recess Appointments Clause is limited to the intersession of Congress, the holding will necessarily rule out recess appointments in all cases but appointments made at the intersession.

Second, minimalism is incompatible with the rule of law. Deciding cases based on their peculiar facts gives little guidance to citizens as to what their rights and obligations are. Indeed, the reductio ad absurdum of minimalism is to decide the case of A v. B for A or B without giving any reasons at all: that approach surely resolves the case by making as little law as possible! More generally, insofar as a case emphasizes particular facts for the sake of a narrow ruling, its holding provides little help for those trying to figure out what the Court will do in the next case.

Minimalism thus maximizes judicial discretion over time. This kind of discretion appeals both to those who believe the Court should a policymaking institution rather than a law-interpreting one or to those who simply do not like its current results. Thus, if one believe that the Constitution just furnishes a set of textual footholds for judges to make wise decisions case by case, minimalism is congenial precisely because it eliminates the constraint of principles that reach beyond a single case. If one believes that the current Court is out of step with one’s ideological preferences, minimalism minimizes the constraints of past precedent on future justices.

But for those who believe that Court distinguishes itself from the political branches precisely by the application of neutral principles that transcend policy preferences, minimalism is not a form of jurisprudence, but a marker of its absence.

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