If This Be Minimalism

Cass Sunstein has a really strange TNR piece trying to make the case that even though Alito and Roberts vote all the same ways as Roberts and Scalia, there's an important difference in that the former two are "minimalists" (which Sunstein thinks is good) whereas the latter two make sweeping theoretical claims.

The obvious riposte to this is: So what? That they have a different literary style is neither here not there unless you have some reason to believe they might rule differently (ruling on cases, after all, is what justices do) from their conservative colleagues in the future, and Sunstein has none. At any rate, see Jonathan Zasloff and Scott Lemieux for more on this if you're interested.

Photo by Flickr user Blmurch used under a Creative Commons license

Comments

But the content of the ruling--from the perspective of how it applies to the rest of us--is largely determined by the language they use.

Erroneous, Yglesias.

Posted by southpaw | July 1, 2007 11:56 AM

Sunstein makes a similar point in blog form.

Posted by minderbender | July 1, 2007 11:58 AM

All right, I think the key point is that so far there haven't been cases that forced the two factions into conflict. When that happens, the "minimalists" may turn out to be more devoted to conservatism than to judicial moderation, but maybe not. This might not be satisfactory to those of us who don't like the Supreme Court being in the hands of conservatives, but it's a legitimate point for Sunstein to make.

Posted by minderbender | July 1, 2007 12:07 PM

i started to read the link minderbender provides us and i got sick. the idea that roberts and alito are "preserving" precedent by gutting it is just nauseatingly ridiculous.

the fact is, scalia is correct: he noted in several opinions the utter silliness of overruling precedent while pretending not to.

all this means is that roberts and alito continue, on the court, to play the same game they played in their confirmation hearings. this we are supposed to admire? whatever is sunstein thinking?

Posted by howard | July 1, 2007 12:08 PM

minderbender, with respect to your 12:07, if and when the day comes that roberts and alito vote differently than scalia and thomas over a core issue, then we can examine how and why they voted differently. until then, sunstein is drawing a distinction without a difference.

Posted by howard | July 1, 2007 12:19 PM

TNR is the home for writing about US politics which pretends that there are much greater differences between individual US politicians than there in fact are.

Posted by otto | July 1, 2007 12:23 PM

the key point is that so far there haven't been cases that forced the two factions into conflict

From Zasloff and Lemieux's point of view, the key point is that there haven't been cases that forced the two factions into conflict because the "minimalists" always take the conservative view. If Scalia and Thomas say "Let's overturn this liberal-friendly precedent" and Roberts and Alito say "Let's not, let's just never apply it," it doesn't make any difference.

Perhaps in Sunstein's TNR article (I'm not registered there) he provides evidence that in the future Alito and Roberts will not vote with Scalia and Thomas with such "stunning regularity," but Sunstein's predictions have already come up wrong once. (Actually, Lemieux thinks that when A&R diverge from S&T it's more likely that A&R will be taking the conservative view, because S&T's grand theories occasionally constrain them.)

Posted by Matt Weiner | July 1, 2007 12:23 PM

Yes, why does Roberts always vote the same way as Roberts???

Posted by godoggo | July 1, 2007 12:29 PM

I loved the end-of-term NPR coverage on Friday. It was Jeffrey "I have a man crush on Roberts" Rosen v. some right-wing hack. That NPR station you send a hundred buks to every year: fair and balanced!

Posted by Linus | July 1, 2007 12:38 PM

"Alito and Roberts vote all the same ways as Roberts and Scalia"

Safe to assume that you meant "...same ways as Thomas and Scalia"?

Posted by Robert Earle | July 1, 2007 12:41 PM

I agree with the first comment insofar as it criticizes this post, but not to the extent that it's suggesting that therefore Sunstein's article is correct. The range of outcomes of any case isn't binary (liberal outcome, conservative outcome), but continuous, and having a differently written opinion has both present and future effects.

Posted by washerdreyer | July 1, 2007 12:53 PM

The difference is that the 'minimalists' understand that conservatism can be foisted on the Americans only by subterfuge and/or deception.

Another name for this is 'Bushism'.

Posted by gregor | July 1, 2007 1:03 PM

Can't say much for Alito, but the Justice who wrote "the way to stop discriminating by race is to stop discriminating by race" is (1) no minimalist, (2) has a well-thumbed copy of "Scalia Dissents." Roberts is not a minimalist. Of course, he knew how to argue for minimalist rulings when they would help his clients count to 5, but now his only client is his id.

Kennedy's concurrence, which is controlling, is plausibly minimalist, since he leaves in place the principle that racial integration can be a compelling interest and that race can be used in achieving this objective, just not on an indivudal basis. I'm with the dissenters, ideologically, but Parents United has an example of a minimalist decision, and it's not the one that goes out of its way to say de facto segregation is fake.

Posted by David B. | July 1, 2007 1:12 PM

All right, I think the key point is that so far there haven't been cases that forced the two factions into conflict.

Well, there was at least one case: the punitive damages case. Alito and Roberts took the pro-business position; Scalia and Thomas did not.

Linus--I head that. Wow. (I also liked the bit about how Robert's had defied Rosen's predictions of Roberts creating a much more unanimous court were foiled because the other justices wouldn't go along. Yes, that will tend to undermine unanimity...)

Posted by Scott Lemieux | July 1, 2007 1:16 PM

Cases
decided 5-4
decided the wrong way
consequential

Ledbetter--employers able to get by with discriminatory actions
Hein--let her rip--Republican officeholders unrestrained in funding religious activities (making some reasonable assumptions about standing and decisions to come), probably with corrupting effects in what's already a corrupt sector
Leegin--prices rise significantly, everybody pays a little more, low-income folks cut back
Carhart--not so much for what it does today but for what it portends--more ill-cared for children, more adult lives with curtailed opportunities
Uttecht--a prosecutor's dream. Presumption of innocence derogated.

But a further question:
where has the court decided in way that legislatures cannot easily fix* and can be expected to do better?
In none of these cases.

*IF--as is probably not the case--legislatures can move with reasonable alacrity. But I suspect that even a really democratic legislature would do better on abortion or capital punishment or funding religion, or even price maintenance (influence of maintainers' lobbyists).

Posted by Democrat | July 1, 2007 1:32 PM

Cass Sunstein makes a typical Broderville mistake, confusing amiable style and temperament with moderation.

I remember all the so called liberal and moderate legal scholars urging the confirmation of Roberts and Alito. They all emphasized their good manners, civility, how well they got along with others and argued that this meant they would not rock the boat.

There is absolutely no logical connection between style and ideological zeal.

Back in 1994 when Kenneth Starr was appointed IC much of the press argued that he was "mild mannered", "soft spoken" and therefore would not pursue a partisan vendetta.

The press said the same thing about Bush in 2000 arguing that he was not a bomb thrower like Newt or Delay therefore he would be a centrist.

Sad thing is Broderville types never learn. Even as we speak they are swooning over Fred Thompson's folksy style.

Posted by DonB | July 1, 2007 2:16 PM

BTW, terms like "minimalist", "judicial activist", "strict constructionist".............have all become meaningless Orwellian doublespeak.

Remember Bush v Gore?

The Federalist Society types which make up the current court are not really conservatives or state rights advocates but rather partisan ideologues. They decide on the outcome they want first and then come up with a so called explanation.

Posted by DonB | July 1, 2007 2:26 PM

It's important to note that wingers have a whole panoply of bogus, misleading rhetoric.

Posted by Jeffrey Davis | July 1, 2007 2:42 PM

It's a huge distinction and one can forgive a non lawyer for not understanding when votes are the same in a particular case.

Alito and Roberts could have said "race can never be used as a factor" (the Scalia and Thomas view) in deciding who goes to what school as opposed to saying "race can not be the only factor" (Alito and Robert's view in the Seattle and Kentucky cases).

This means that the door is left open for race to be used as a factor as long as the statue is narrowly tailored. This is essentially the test affirmitive action uses.

So wahts the outcry over? Frankly, I doubt many people actually read the case before commenting on it. People just hear "conservative" and "race" and assume the worst.

Now I guess you can make the argument that if something is eroded away by 10,000 cuts, then it is the same as wiping it away ala Scalia, but that requires the ability to see into the future and anyone who claims that, well, they have been watching too much Firefly.

Posted by Dave | July 1, 2007 6:23 PM

Minimalism is not a reference to literary style but to the breadth of the court's holding -- how many permutations of an issue it affects.

Consider that in the 2003 Lawrence case, Justice O'Connor concurred with the majority's decision to overturn the Texas case, but on the narrow ground that it violated the Equal Protection Clause, which meant that a law that outlawed straight and gay sodomy alike would have been acceptable to her, even though it would have affected people of different sexual orientations unequally. Justice Kennedy's broad opinion for the court, by contrast, articulated an individual right of privacy that protects gays and straights equally.

Posted by jason | July 1, 2007 6:48 PM

In my comment above, the second line should have read "to overturn the Texas law" ...

Posted by jason | July 1, 2007 6:51 PM

Hey, just wanted to say thanks for using my photo and thank you for giving credit!

Posted by Beatrice M | July 1, 2007 11:42 PM

speaking as a lawyer, most of you are all wet.

the difference is in precedential value.

a minimalist, narrow holding allows for a lot more room as far as how the lower courts will reveal.

it's easy to say that "Roberts and Alito say that this precedent will never apply even though we're not expressly overruling it"...but even if that's true...it doesn't mean what you think it does. 99.999999999% of all cases aren't going to reach the SC. which means that some of the lower courts are still going to apply that "liberal" precedent except when the facts are identical to that which Alito and Roberts ruled on.

there's a big difference in effect as far as the actual process of law.

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