RADICALS IN ROBES
Why Extreme Right-Wing Courts Are Wrong for America
By Cass R. Sunstein
Basic. 281 pp. $26
DAVID HACKETT SOUTER
Traditional Republican on the Rehnquist Court
By Tinsley E. Yarbrough
Oxford Univ. 311 pp. $29.95
ADVICE AND CONSENT
The Politics of Judicial Appointments
By Lee Epstein and Jeffrey A. Segal
Oxford Univ. 180 pp. $23
Cass R. Sunstein's new Radicals in Robes opens with a series of spooky glimpses into America's future: States can ban the buying and selling of birth control. They can establish official churches. The right to privacy, the Clean Air Act, the Endangered Species Act, campaign-finance reform and federal gun-control laws have been shredded.
Sunstein's scare scenarios aren't exactly around the next bend; conservative bloggers have scoffed that he's puffing up the agenda of a few obscure judges and scholars. No matter. Right-wing "movement judges" are increasing in number, the University of Chicago law professor warns, and if they have their way, they will roll back constitutional interpretation 75 years to its pre-New Deal days. Their means to that end is "originalism," the theory of constitutional interpretation championed by Supreme Court Justices Antonin Scalia and Clarence Thomas, who celebrate fealty to the framers' understanding of their original, unadorned text.
Sunstein argues that the originalists (whom he rather gratuitously renames "fundamentalists") are wrongheaded and internally inconsistent. Their approach is worse than the alternatives because it leads to "an inferior system of individual rights," Sunstein ventures. He spends more time on the inconsistencies, which would seem to matter less ultimately but make for a good game of "gotcha." Some originalists ascribe broad war powers to the president, for instance, though the Constitution gives Congress, not the executive branch, the power "to make Rules for the Government and Regulation of the land and naval Forces," "to declare War" and "make Rules concerning Captures on Land and Water." When Scalia and Thomas strike down government affirmative action programs, they don't do it in the name of the original understanding of the Fourteenth Amendment's guarantee of equal protection under the law. They don't delve into the history much at all -- a lapse Sunstein calls "a most serious embarrassment."
This wins Sunstein debaters' points. But despite the subtitle of his book, attacking right-wing courts is only half of his goal here. Radicals in Robes is also a critique of left-wing judges -- Sunstein calls them "perfectionists" -- who misguidedly strive to "make the Constitution the best that it can be." This impulse animated the storied liberal decisions of the Warren court in the 1960s and '70s, which Sunstein thinks overreached. If he chooses to frame his book and his marketing campaign as an attack on Scalia and Thomas rather than on William Brennan and Thurgood Marshall, that's because the liberals aren't there to kick around anymore. Brennan and Marshall's "approach to the Constitution has entirely disappeared from the bench," Sunstein correctly writes. To spar with judges like them, Sunstein has to move to the Supreme Judicial Court of Massachusetts, which recognized a right to gay marriage, or to courts in Canada and Israel.
Sunstein's antidote to what he views as judicial extremism on both ends of the spectrum gets its own buzzword: "minimalism." Minimalists take baby steps. They are "cautious about undoing the fabric of existing law." They don't think judges should take it upon themselves to resolve disputes that expose deep social fissures, like the ones over religion in the public sphere, gay marriage and abortion. They are happy with "incompletely theorized agreements" -- compromises that paper over rather than choose between irreconcilable differences of opinion. Minimalists "are greatly embarrassed" by Roe v. Wade and "nervous" about Lawrence v. Texas, the 2003 decision that struck down state laws forbidding sodomy. Roe preempted a democratic, state-by-state evaluation of abortion rights. Lawrence opened the door to big open-ended questions -- like what makes "genuine freedom possible," as Harvard's Laurence Tribe puts it -- that minimalists think judges should steer clear of.
All of which is entirely reasonable, a quality Sunstein generally exudes. (He's a favorite on radio and TV for sorting out clashing legal views.) As the great shining beacon for American law, however, reasonableness only gets you so far. Sometimes Sunstein countenances spineless, shameful results, like the Supreme Court's decision in Korematsu v. United States to allow the internment of Japanese Americans during World War II. In other areas of law, as Yale Law School's Akhil Reed Amar has pointed out, Sunstein (along with a lot of liberals) is too quick to assume that the original meaning of the Constitution will lead to bad results.
And Sunstein's embrace of minimalism, circa 2005, stands on the shoulders of the groundbreaking Warren court. "Sure you're against perfectionism, but only because we've already given you most of what you want," Sunstein imagines the ghosts of Brennan and Marshall complaining. To which he answers, "So what?" If the courts hadn't come through for liberals on abortion and anti-discrimination, for example, Congress and state legislatures might have -- and the country would be better off for the exercise of democratic self-government.
But when Brennan's or Scalia's way leads to a result that stands up well over time, why shouldn't judges follow either approach? Why not pick and choose among interpretive methods? "There may be truths in each one of those positions," Sen. Orrin Hatch (R-Utah) said of Sunstein's categories at Chief Justice John G. Roberts Jr.'s confirmation hearings, "and none of them absolutely creates an absolute way of judging." Coherent theories of constitutional interpretation are satisfying for scholars, but most Supreme Court justices don't stick to one. And as Sunstein acknowledges, of the theories he lays out, minimalism has the fewest takers on the court -- at the moment nary a one.
Tinsley E. Yarbrough's biography of Supreme Court Justice David H. Souter is a timely reminder of why this may be so. At his 1990 confirmation hearings, Souter was asked about his judicial philosophy and said he "preferred the approach of the late Mr. Justice Harlan above all others." Frequently a dissenter on the Warren court, John Marshall Harlan is remembered chiefly for his adherence to precedent -- the Supreme Court's past decisions -- and for deciding cases according to flexible common law principles rather than originalist rules. Sure enough, Souter has done his share of Harlan-esque judging, most famously in Planned Parenthood v. Casey, the 1992 decision that declined to overrule Roe.
Yarbrough, a political scientist at East Carolina University, is fond of his subject. He doesn't have much new material to work with. (Souter didn't sit for an interview, as judges frustratingly often don't.) Still, the book is a detailed and sympathetic portrait of the justice, and its account of Souter's confirmation is particularly salient at the moment.
Yarbrough argues that, given Souter's respect for settled law and the nature of that law since the 1970s, "it is not surprising that he would develop a moderately liberal voting record." But some of Souter's stances -- his vote with the majority in Lawrence, the gay-rights case, for example -- can't be explained by his respect for precedent. Souter has simply shifted to the left as the country has shifted to the right. Over the last decade of his 15 years on the court, he has voted most often with the relatively liberal John Paul Stevens (more than 63 percent of the time) and least often with Scalia (less than 31 percent). When Souter advocates taking big steps instead of baby ones -- in his call for strictly enforcing the separation of church and state, for example -- is he betraying his minimalist roots or recognizing their limits?
Sunstein's call for minimalism -- or its cousins, pragmatism and restraint -- was echoed many times last month at Roberts's confirmation hearings. Democrats wanted Roberts to reassure them that he was not, in essence, a movement judge. Advice and Consent, Lee Epstein and Jeffrey A. Segal's useful primer on the confirmation process, makes clear that the American method of choosing federal judges is not always designed to produce moderate candidates. When one party controls both the presidency and the Senate, it gets the chance to alter the legal status quo. Epstein and Segal, both political scientists, chart the ideology of presidents against the ideology and voting records of their Supreme Court nominees and show that most justices match up fairly well with their presidents over time.
Souter, of course, is the famous recent exception -- the president who picked him, George H.W. Bush, never lived down Souter's refusal to toe the expected conservative line. But as Epstein and Segal point out, Souter was the product of a Democratic Senate. Unlike his father, President George W. Bush doesn't face that constraint -- which is why some conservatives are so puzzled and enraged by his choice this month of a behind-the-scenes loyalist, White House counsel Harriet Miers, to fill Sandra Day O'Connor's seat.
Would Miers's critics on the right feel better if they studied Epstein and Segal's charts showing the alignment of a president's views with those of his judicial picks? Not necessarily. To be sure, historically speaking, Souter is the exception, not the rule. So Miers might well prove more to conservatives' tastes than many now fear. But at bottom, maybe Bush simply doesn't want a far-right court, no matter how many times he professes his admiration for Scalia and Thomas. After all, the president and his advisers are canny enough to know that the legal status quo -- Roe in particular -- has been good for them. As Sunstein writes, "a judicial decision to overrule Roe would immediately create a major crisis for the Republican Party. Some red states would undoubtedly turn blue or at least purple." If Bush's Supreme Court picks don't bring about the legal revolution that Sunstein fears, that will probably be because the president doesn't want them to. *
Emily Bazelon is a senior editor at Slate.