Judicial minimalism

This article is about judicial philosophy. For other uses, see Minimalism (disambiguation).

Judicial minimalism refers to a philosophy in United States constitutional law which promotes itself as a politically moderate viewpoint.

Summary and complaints against "judicial extremism"

Largely associated with Cass R. Sunstein, it presents itself as a moderate stance, criticizes the more conservative stance of originalism as judicial activism in disguise, since minimalists believe that a faithful application of originalist theory would result in a system of constitutional law where modern societal mores would be ignored, largely in favor of the now-antiquated ones held by the Founders based on the assertion that the Founders' understanding of constitutional law would likely include ideas about gender equality, racism, etc. that modern society would find objectionable. Conservatives who subscribe to this viewpoint, minimalists say, are likely to ignore precedent where it is convenient for conservative political aims. Minimalism also criticizes traditional liberal judicial activism as overexpansive and also ignorant of precedent when it is convenient to liberal political aims.

The minimalist viewpoint

Minimalists offer very small, case-specific interpretations of Constitutional Law as an alternative to what they see as the excesses of extremists on both sides. They believe that a stable Constitutional Law is in everybody's interest, and place great importance on the concept of precedent and stare decisis. They argue that only very small interpretations away from precedent, narrowly-applied, and based on the general direction of society constitute true judicial restraint rather than any originalist or strict constructionist viewpoint (in opposition to conservatives), while still allowing for a Living Constitution (albeit one with a much slower adaptation than many liberals would like). Depending on the minimalist's particular preferences, a minimalist on the court would be likely to either very slowly bolster or chip away at abortion precedents rather than proclaim a lasting ban or legalization on abortion via Constitutional rulings.

Justice Sandra Day O'Connor is often hailed by minimalists as their ideal Justice.^{[citation needed]}

In a concurring opinion in the 2011 Supreme Court case NASA v. Nelson, Justice Antonin Scalia derided minimalism as a "never-say-never disposition [which] does damage for several reasons."^[1] Justice Samuel Alito, writing for the majority, defended the Court's minimalist approach in choosing to "decide the case before us and leave broader issues for another day."^[1]

Further reading

• Sunstein, Cass R. (2005). Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. Cambridge, MA: Basic Books. ISBN 0-465-08326-9.  Sunstein's book, despite its title, has been perceived as an attack on both judicial conservatives and liberal activists..

See also

• Judicial restraint
• Cass Sunstein

References

1. ^ ^{a b} Volokh, Eugene (2011-01-19) “Judicial Minimalism” (at Least of One Sort), Pro and Con, Volokh Conspiracy