an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Window Dressing of "Minimalists Versus Visionaries"
Cass Sunstein has offered an erudite analysis of the division between the two wings of the Supreme Court’s hard core conservative bloc.
Alito and Roberts typically seek to preserve the court's precedents and to avoid theoretical ambition. By contrast, Scalia and Thomas are not cautious about jettisoning the court's precedents and rethinking them from the ground up. There are even deeper issues in the background. The visionaries trust "logic and reason" and are enthusiastic about occasional revolutions in constitutional law, if they can be grounded logically and reasonably. In a way, the visionaries sound more than a bit like Jeremy Bentham, who called for codification on the ground that the common law was frequently a chaotic mess of decisions, defying reason. By contrast, the minimalists are operating as literal conservatives, seeking to maintain continuity with what has been done before. In a sense, the minimalists are followers of the great traditionalists Edmund Burke and Michael Oakeshott, who distrusted abstract theory, sought to build on the past, and favored incremental change.
On an intellectual level, Sunstein’s contrast has plausibility, but on the gut level it seems to mischaracterize the situation. What really matters is contained in Sunstein’s next passage:
Notwithstanding these differences, it is both important and true that in every important case this term, the minimalists and the visionaries have agreed about the proper result. Roberts, Alito, Scalia, and Thomas have been operating a bit like the Four Horsemen of the Court's distant past -- not in the sense that their views are poorly reasoned (they aren't) or palpably wrong (they aren't), but in the sense that they vote together with real regularity, and in predictably conservative ways.
The key lesson to be taken from the Supreme Court’s decisions this term is not that conservatives are in control of the court—that was plain already—but that they are willing to aggressively exercise this control to further the conservative agenda.
In their respective confirmation hearings, Justice [“I call balls and strikes”] Roberts and Justice [“A judge’s duty is to follow the law”] Alito promised that their decisions would not be based upon their political views. To many observers that sounded disingenuous or naïve, but it is the correct position to take. It suggested that they would judge with restraint and self-awareness, and it confirmed their recognition that they are a court of law, not the Supreme Political Council. Nonetheless, it did not take long before Justices Roberts and Alito, along with their conservative cohorts, embarked upon their rightward constitutional march, slowly at first, then picking up the pace at the end.
Even Scalia characterized Roberts’ minimalist style as a fraud, writing “This faux judicial restraint is judicial obfuscation.” If Scalia is willing to tell it like it is—at least with respect others—then why should we buy into the notion that, as Sunstein put it, “Alito and Roberts typically seek to preserve the court’s precedents.” Striving to circumvent or gut a precedent while maintaining its facade is the opposite of seeking to preserve a precedent.
Besides that Sunstein’s account is suspect as a descriptive matter, at least with respect to the minimalists, the problem with characterizing their internal division as a difference of legal philosophy is that it lends too much gravitas to the window dressing. To talk of Bentham and Burke in this context seems too grand.
Here is a more fitting, down-to-earth characterization. Their dispute is a spat over the best color combination for the constitutional rug: Thomas and Scalia want bright, gaudy colors; Roberts and Alito want more muted tones. But they firmly agree upon the size, shape, and texture of the rug. They need Justice Kennedy’s help to weave the rug, and his taste in colors inclines toward muted, with a bright splotch here and there. Their task is complicated by the fact that others with different designs have woven (or are trying to weave) parts of the rug, which must be reworked (or excised) if the conservative design is to be realized. Thomas and Scalia want to shred the existing rug to more efficiently build the rug they desire, but Roberts, Alito, and Kennedy are reluctant to go that route. Despite their differences, there is no doubt that all five justices are pleased with the progress they are making on their conservative constitutional rug.
I clearly remember Sandy Levinson telling us, when everyone was fawning over CJR and his ostensible consensus-driven agenda, to not believe the hype. Prescient.
I agree that Prof Sunstein's analysis is somewhat puzzling, and a bit too kind to CJR and SA. Moreover, perhaps it is understandable that AS/CT want to redo the constitutional "rug"; they see the conservative constitution in sight (more so than ever before). I'm not sure if this means I'll miss Scalia's caustic and sarcastic dissents (or not)