One Case at a Time: Judicial Minimalism on the Supreme Court

Cass R. Sunstein, Author
Cass R. Sunstein, Author Harvard University Press $31.5 (304p) ISBN 978-0-674-63790-0
Paperback - 304 pages - 978-0-674-00579-2
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Digging much deeper than the limiting liberal/conservative dichotomy through which the Supreme Court is habitually viewed, constitutional scholar Sunstein (The Cost of Rights, with Stephen Holmes, Forecasts, Jan. 11) gives readers a thoughtful analysis and defense of the Court's institutional caution. He uses the term ""minimalism"" to define the Court's preference for deciding individual cases while leaving ""fundamental issues undecided."" According to Sunstein, judicial minimalism is desirable both on prudential grounds (because the Court lacks the long-range vision to anticipate the consequences of many decisions) and on political grounds (because the Court leaves fundamental issues for the democratic process to resolve). On the former point, Sunstein offers some compelling insights into the limits of lawyers' and judges' predictive abilities. On the latter point, he will not convince all readers to share his confidence in democratic procedures: some will argue that resolving questions of constitutional rights (e.g., abortion, privacy, the gradations of free speech) exclusively through majoritarian processes may undermine the protection of such rights. Sunstein views sees this danger as one of the many tensions of our constitutional system (along with those between liberty and equality, negative and positive rights). An able writer who makes complex judicial issues accessible, Sunstein offers provocative and informative reading for general readers seriously interested in the life and work of the Supreme Court. (Mar.)
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