One Case At A Time - Review

Washington Monthly, May, 1999 by Abner Mikva

ONE CASE AT A TIME by Cass Sunstein Harvard University. Press, $29.95

The best job I ever had, in several trips to the public arena, was as a law clerk to a Supreme Court justice back in the 1950s. That Court doesn't even have a name (like the Warren Court or the Burger Court). Fred Vinson was the chief justice, but he was not there long enough nor deeply enough to get a Court named after him. With the exception of the Steel Seizure case (Youngstown Sheet & Tube v. United States), there weren't too many seminal cases that came out of my clerkship year, or of the years when Vinson and some other Truman appointees prevailed. Indeed, if it hadn't been for the strong voices of Justices Hugo Black, William O. Douglas, and Felix Frankfurter, there isn't much judicial prose that would have survived the "Vinson" Court.

To Cass Sunstein, that's not necessarily bad. Sunstein, a professor of law at the University of Chicago, is a proponent of "minimalism," which he defines as "saying no more than is necessary to justify an outcome, and leaving as much as possible undecided." Under that definition, judges do well to avoid seminal pronouncements and timeless prose: Say what you have to say to decide the case before you go on to the next dispute.

Part of what makes the book remarkable is that such an approach is not what academicians usually favor. How can you write a book about nonseminal cases? How can you excerpt an opinion that has no classy language? While Sunstein might hold up his minimalist model as one that best carries forward the judiciary's proper role in a free society, not too many judges follow that role. That's fortunate for Sunstein's profession: Law reviews and law books alike find the expansiveness of judges' writings great grist for their mills. And if that expansiveness includes some purple prose and some ad hominem comments about a fellow jurist, so much the better.

How does minimalism play out in the current Supreme Court? The Sunstein analysis makes Justice Sandra Day O'Connor the very model of what a Supreme Court justice should be. Because she is usually looking for the quietest way to resolve the case, her opinions are "minimalist." Since she avoids extremes, doctrinal or semantic, her language is calm and not likely to be deathless. Justice Antonin Scalia, on the other hand, is the activist-protagonist under the minimalist analysis. While Justice Scalia always preaches judicial restraint, his opinions range far and wide over the legal countryside. When he has a majority, he will take the Court as far as it is willing to go, restrained only by how much he worries about losing the majority if he gets too epexegetic.

Sunstein starts his analysis of the current Supreme Court with cases like the right-to-die case, the decision striking down "male only" admissions to the Virginia Military Institute, and Romer v. Evans, which struck down a Colorado law discriminating against homosexuals. They were minimalist decisions, because although they dealt with the most hot-button issues in our society, the Court made as few waves as possible.

Sunstein's analysis seems to honor those justices who do the least to rock the boat. Justices who let the Congress (and the state legislatures) do their thing without interference from the courts are to be preferred to those who try to micromanage the legislative process--such as the Vandevanters and Butlers who fought the New Deal from their perches on the Supreme Court. His analysis gets a little tenuous when he applies minimalism to the First Amendment cases. He acknowledges that the history of First Amendment cases before the Court has not been minimalist in nature. But he urges that technological uncertainties should move the Court to be chary in saying too much too broadly. I'm not sure that his own history of First Amendment advocacy allows for some fundamental distinction between free speech problems when they come up in cable as opposed to when they come up in books or movies.

That, of course, was the appeal of Justice Hugo Black's absolutist views about the First Amendment: He didn't have to distinguish between the forms of speech. On speech issues, he often clashed with that classic minimalist Felix Frankfurter. Ironically, Sunstein's own First Amendment views seem closer to Black's than Frankfurter's. Which only goes to show that nobody has ever really been able to reconcile all of the twists and turns of the Court when it deals with speech cases anyway, so Sunstein's problems are not unusual. Some years ago, Professor Lee Bollinger, then at the University of Michigan, explained the inconsistencies of First Amendment cases by calling the Amendment "aspirational" rather than a binding legal doctrine. That meant that when the country was secure we could tolerate otherwise objectionable speech and speech acts more easily than when we were at war or under threat. While some called the approach a cop-out, it had the advantage of not trying to reconcile the irreconcilable.