April 30, 1998
Vol. 17, No. 15

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    Sunstein: Court not 'moral compass'

    Forthcoming book backs Supreme Court's 'minimalist' approach

    By Catherine Behan
    News Office

    Although the U.S. Supreme

    Court is the highest judicial

    body in the nation, it should not be the final arbiter of public debates in America, says Cass Sunstein, the Karl N. Llewellyn Distinguished Service Professor in the Law School.

    The current Supreme Court embraces such "judicial minimalism," Sunstein says, focusing on the specific cases at hand and avoiding a position as America's moral compass. "Indeed," he says, "judicial minimalism has been the most striking feature of the last decade of American law."

    In his book Judicial Minimalism: Constitution and Court at Century's End, forthcoming from Harvard University Press in early 1999, Sunstein defends the court's controversial method of proceeding as "admirably well-suited to a number of issues on which the nation is currently in moral flux."

    Judicial minimalism, Sunstein says, enhances democratic self-government by letting public debates stay in the political realm, rather than the court providing broad, sweeping judgments on contentious issues. Sunstein also emphasizes the need for the court to be alert to the unintended bad consequences of its rulings and to its own lack of relevant information.

    "My particular areas of concern include affirmative action, discrimination on the basis of sex and sexual orientation, the right to die and new issues of free speech raised by the explosion of communications technologies," he said. A Supreme Court that limits its decisions just to the questions at hand "might promote a democratic nation's highest aspirations without preempting the democratic process."

    Sunstein points out some examples of recent court decisions that were appropriately limited, or minimalist.

    "When the court ruled that the Virginia Military Institute could not exclude women, it pointedly refused to say much about the legitimacy of other single-sex institutions; it left the general question undecided," Sunstein writes.

    The court also recently issued a narrow decision -- avoiding the largest moral question in the debate -- in invalidating a controversial Colorado law that in effect gave special rights to gays; the decision in turn struck down the affirmative action program in Richmond, Va. The court did not try to say in detail how the Constitution might view homosexuality, and it did not issue a broad ban on race-conscious programs.

    "It left that question for another day, as it should," Sunstein said. A minimalist court, he explained, is less likely to make errors, and, above all, the errors they do make will likely be less damaging.

    Sunstein points to the infamous Dred Scott case as an example of a failed attempt by the Supreme Court to rule on a broad, controversial issue before the public debate was settled. In the case of Scott, a black man who was free under one state law and a slave in another, the court ruled that Scott was still a slave, striking down the Missouri Compromise, which had abolished slavery in certain territories.

    "Of course, the court's decision was a disaster, helping to fuel the Civil War," Sunstein writes. "There was no need for the court to have been so ambitious."

    The court could have avoided the controversial issues in the case by deciding the case on more narrow issues, such as saying the Missouri law controlled the question of Scott's legal status, Sunstein says.

    "In that event, the large issues in the case would have been left alone, and the Dred Scott case would have been an unimportant episode in American Law," he writes. "Notably, the court itself rejected its initial choice of minimalism because it wanted to take the slavery issue out of politics and to resolve it once and for all time.

    "This attempted course was a disaster, partly because of the moral judgment itself," he writes. "The court's abysmal failure in this case is certainly a cautionary note because it shows the possible unreliability of moral judgments from the court and also because it shows that judicial efforts to resolve, once and for all time, questions of political morality may well be futile." Today's issues might lure the court to make similar sweeping decisions, but it is important for the justices to know when to look at narrow issues and when to look at broad problems. Cyberspace offers a current example of a complex decision that should be left to politics, said Sunstein, who is a member of President Clinton's panel studying how emerging technologies, including the Internet and high-definition television, affect the First Amendment. The court might feel the need to solve the issue once and for all by seeing the First Amendment as simple and absolute.

    "Even though the First Amendment is first, it would be best for the court to be humble and cautious rather than set out some rules that might be bad or confounded by new circumstances and technologies," Sunstein said.

    "The case for minimalism is especially strong when the area involves a highly contentious question now receiving sustained democratic attention," he continues. "In such areas, courts should be aware that even if they rely on their own deepest convictions, they may make mistakes like Dred Scott."