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Minimal Appeal

Minimalism v. fundamentalism.

Even after his nomination to the Supreme Court, the president's nominee, John Roberts, remains a mystery. By all accounts, he's a wonderful person and a first-rate legal mind. But he has been a judge for only two years, and his public record is thin.

In order to determine what kind of justice he will be, it helps to understand the philosophical camps that have shaped modern constitutional theory. Over the past century, justices have come in four varieties. Majoritarians prefer to uphold the decisions of other branches of government unless those decisions clearly violate the Constitution. Perfectionists believe that, in order to perfect the Constitution, they should interpret it in broad terms that expand democratic ideals. Minimalists like small steps and prefer rulings in which the most fundamental questions are left undecided. And, finally, fundamentalists believe that the Constitution should be read to fit with the original understanding of the Founding Fathers; they are willing to make large-scale changes to established laws to return to that understanding.

A key question is this: With which camp does a nominee tend to align himself, and with what reservations? This is why the debate during Roberts's confirmation hearings should center on the different approaches--and their real-life implications.

Many of the great social programs of the New Deal era were legitimated as a result of majoritarianism. Majoritarians want courts to stand aside, as they did during the New Deal, when many supporters of President Franklin Delano Roosevelt argued for a much weaker judicial role. But majoritarianism was best articulated some 40 years before by Harvard Law Professor James Bradley Thayer, who argued that, because the U.S. Constitution is often ambiguous, those who decide on its meaning must inevitably exercise discretion. Thayer's argument, in brief, was that courts should strike down laws only "when those who have the right to make laws have not merely made a mistake, but have made a very clear one--so clear that it is not open to rational question."

Amazingly, no member of the current Supreme Court is a committed majoritarian. But, if majoritarians were in control, it is likely that they would permit the government to ban same-sex sodomy, or, for that matter, opposite-sex sodomy. They would also permit the government to create affirmative action programs, or even racial quotas designed to increase the number of African Americans in colleges and graduate programs.

Among liberals, majoritarianism has lost its popularity, in part because of the approach of the Warren Court, which fell squarely into the perfectionist camp. Perfectionist justices want to interpret the Constitution to promote individual rights. Many perfectionists insist that the Court should protect those groups that are least able to protect themselves in democratic arenas. The Warren Court embraced perfectionism in its decisions striking down segregation, protecting privacy, and endorsing voting rights for blacks. Justices William Brennan, Thurgood Marshall, and William O. Douglas can all be described as perfectionists.

In the last decades, perfectionists have sought to use the Constitution to strike down bans on same-sex marriage, to create a right to welfare, and to give people a right to make medical decisions free from governmental constraint. On the current Supreme Court, perfectionism is hard to find, simply because the perfectionists of the Warren Court have no successors on this Court. Perfectionism can easily be found in the major law schools, but it is no longer a significant presence on the federal bench.

Minimalism, however, is still very much alive. Minimalists are conservative in the literal sense. They prize stability. They like small steps. They dislike ambitious theories, and they hope to do no more than is necessary to resolve cases. Justices Felix Frankfurter and John Marshall Harlan, great conservative voices on the Warren Court, were committed minimalists, deploring that Court's tendency to issue sweeping rules (as, for example, in decisions giving broad protection to free speech and the right to vote).

When President Bush speaks of "strict construction" and compliments Justices Antonin Scalia and Clarence Thomas, he seems to be endorsing a controversial approach to constitutional law, one that would require radical revisions in our practices. Minimalists like Frankfurter do not like radical revisions. They try to avoid the deepest questions about the meaning of the free speech guarantee, the extent of the Constitution's protection of "liberty," what it means to respect the "free exercise" of religion, or the scope of the president's authority as commander-in-chief of the Armed Forces.

Minimalists have no desire to revolutionize the law by reference to first principles. They think that law, and even social peace, are possible only because people set aside their deepest disagreements and are able to decide what to do without agreeing on exactly why to do it.

Minimalists celebrate the system of precedent in this spirit. Judges may not agree with how previous judges have ruled, but they can agree to respect those rulings--partly because respect promotes stability, and partly because respect makes it unnecessary for judges to fight over the most fundamental questions whenever a new problem arises. For example, some liberal judges believe that affirmative action programs should always be upheld, and some conservative judges believe that such programs should always be struck down. But, if judges respect precedent, they will not simply follow their own judgments; they must pay heed to what others have said before them. Minimalists are cautious about undoing the fabric of existing law.

By itself, minimalism is a method and a constraint; it is not a program, and it does not dictate particular results. We can easily find liberal minimalists and conservative minimalists. Justice Ruth Bader Ginsburg's approach to the law is complex, but it is fair to describe her as a liberal minimalist. She likes to decide cases, rather than set out general principles; and she is reluctant to embrace large-scale generalities about the foundations of the law. Conservative minimalism is nicely captured in the opinions of Justice Sandra Day O'Connor. O'Connor wasn't a part of any movement. But, much of the time, her votes were in a conservative direction. She has contributed a great deal to decisions limiting affirmative action and increasing government's power to protect fetal life; but she has refused to vote to forbid affirmative action in all circumstances or to overrule Roe v. Wade. Minimalists are cautious by nature, and the minimalist camp is large and diverse. The point is that they greatly prefer nudges to earthquakes.

Fundamentalists are radically different. They are committed to "originalism" and treat that commitment as a fighting faith. If the Constitution was not originally understood to ban sex discrimination or protect privacy, the legal question is resolved. Fundamentalists know that current constitutional law rejects their own approach, and they tend to feel angry and even embattled about that fact. For this reason, fundamentalists have radical inclinations. Thomas is the best example here; Scalia, who often accepts precedents, is more cautious. Many fundamentalists do not want to make huge changes immediately, but they hope to make them sooner rather than later.

Fundamentalists have long had a clear agenda for the federal judiciary. They consider themselves part of a movement with identifiable goals, which include the overruling of Roe v. Wade, the strengthening of presidential power, the elimination of the right of privacy, the invalidation of affirmative action, the creation of new limitations on congressional power to regulate the economy, and the strengthening of property rights. Because Scalia and Thomas are plainly committed to fundamentalism, they can aptly be described as "movement judges." To their great credit, they usually follow their own preferred method. They take the historical materials very seriously. But serious fundamentalism would change the country as we know it. It would mean that the federal government could discriminate on the basis of race and sex. It would eliminate the right of privacy. It might well mean that states could establish official churches. It might even raise serious questions about the Federal Communications Commission and the Clean Air Act. It could do a lot more.

At the same time, there are a number of important areas in which fundamentalists seem to follow their own partisan convictions rather than the original understanding. To take just one example, fundamentalists (including Scalia and Thomas) have voted in favor of striking down affirmative action programs without even bothering to investigate the question of whether such programs are inconsistent with the original understanding of the Fourteenth Amendment. (They aren't.) Here we can find false fundamentalism hiding behind the Constitution to impose judges' own political values. Unfortunately, false fundamentalism is not hard to find.

The debate between fundamentalism and minimalism lies at the heart of confirmation battles within the Senate. Over the past generation, Democratic senators have had no trouble with minimalists, even if they are quite conservative. But they have given careful scrutiny to, and sometimes blocked, those they believe to be fundamentalists. Robert Bork, an exceptionally able, honorable, and distinguished judge, was rejected by the Senate above all because he appeared to be a fundamentalist seeking to make radical changes in the law. By contrast, Anthony Kennedy was confirmed on the ground that, though unquestionably conservative, he was mostly a minimalist.

President Bush has added both minimalists and fundamentalists to the lower courts; he has not shown a clear preference in favor of one or the other. Roberts's record, taken as a whole, gives some modest indications that he tends toward the minimalist camp.

Here's a good reason to think he isn't a fundamentalist: He hasn't publicly committed himself to it. Most fundamentalists are not in the closet. They have strong convictions about how to interpret the Constitution. They believe that the Court has gone badly off the rails, and they are not shy about announcing that fact. Bush might well have chosen another candidate, such as Judge J. Michael Luttig or Judge Janice Rogers Brown, whose fundamentalist credentials are much clearer. Minimalists don't need, or even like, to announce themselves as such. Judge Roberts's general silence--his unwillingness to attack existing constitutional law in any kind of public way--suggests a minimalist temperament.

There is another point. Judge Roberts's opinions thus far are careful, lawyerly, and narrow. They avoid broad pronouncements. They do not try to reorient the law. When he disagrees with his colleagues, he does so with evident respect and with a frank recognition that reasonable people can disagree. In a separate opinion concluding that American soldiers cannot sue Iraq after being held as prisoners in the Gulf war, Roberts's opinion on some technical issues announces his "agree[ment] with the majority that this question … is close." His opinions show none of the swagger that can be found in some of the writings of Scalia and Thomas.

If there is any counterindication, it might be found in just one of his opinions, involving the Endangered Species Act. The Fish and Wildlife Service decided that a construction project in California would jeopardize the continued existence of the arroyo southwestern toad. The development company argued that the Endangered Species Act could not constitutionally be applied to a project that involved California and not interstate commerce. A three-judge panel of the D.C. Circuit held that the protection of endangered species was sufficiently connected with commerce among the states. The company sought a rehearing before the full court, which was denied by a 7-2 vote. Judge Roberts, along with Judge David Sentelle, thought that rehearing was justified. He suggested that the panel's reasoning was inconsistent with Supreme Court precedent and should therefore be reviewed by the full court.

At first glance, Judge Roberts's dissent might seem to put him in the fundamentalist camp. It isn't easy to attack the Endangered Species Act on constitutional grounds, and any such attack suggests a willingness to impose new limitations on congressional power. But consider the last sentence of Judge Roberts's opinion, suggesting that review before the full court would "afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent." This sentence is minimalism in action: an unwillingness to speak broadly and a desire to proceed with careful attention to particular facts and arguments.

Of course, it would be hazardous to reach any general conclusions on the basis of silences and a brief record on the bench. Judge Roberts was unquestionably an ingenious choice--greatly celebrated by conservatives and without the kind of background that would terrify liberals. But the central questions remain. Is Judge Roberts more like Judge Bork--only without the paper trail? Does he believe that the Constitution should be interpreted to mean what it meant at the time it was ratified? Does he question the right of privacy? Or do his views fit more closely with those of Frankfurter and Harlan? We have reason to suspect the latter, but this is a proper focus of the confirmation process. If that process works well, it will provide some crucial clues about his general approach to constitutional law.

Cass R. Sunstein is a contributing editor.

By Cass R. Sunstein