Next month the curtain rises onthe 10th term of the RobertsCourt. From the beginning,

Chief Justice Roberts has been explicit aboutwanting to foster greater consensus on theCourt. It’s often suggested that the Court’slegitimacy would be enhanced by fewer five-four rulings along the usual conservative-liberal fault line. In his confirmation-hearingtestimony, and more fully in his first majorpublic address, Roberts articulated his viewthat although differences among the Justicesshould not be “artificially suppressed,” agreater degree of consensus in the Court’sdecisions would bring “clear [jurisprudential]benefits.” He explained that unanimous ornear-unanimous decisions “promote clarityand guidance for the lawyers and for the lowercourts trying to figure out what the SupremeCourt meant.” More fundamentally, he said,“[t]he rule of law is strengthened when thereis greater coherence and agreement aboutwhat the law is.” And he famously set for him-self this guiding principle: “If it is not neces-sary to decide more to dispose of a case, in myview it is necessary not to decide more. Thebroader the agreement among the justices,the more likely it is that the decision is on thenarrowest possible ground.”

Much of the early commentary about the

Court’s last term focused on the significantincrease in the number of unanimous judg-ments. For the first time since the 1940s,almost two-thirds of the Court’s merits opin-ions were unanimous on the bottom line, ifnot necessarily in their reasoning. This is gen-erally thought to be a striking and welcomedevelopment. In some key respects it is,although it’s important to note that a signifi-cant part of the Court’s docket each termconsists of technical statutory or proceduralissues that do not engage the philosophicaldifferences among the Justices. Still, theuptick in bottom-line agreement is remark-able, especially in cases raising difficult con-stitutional questions. In this category theCourt achieved this greater degree of con-sensus—if that’s what it is—for the most partby following the Chief’s maxim about nar-row decisions, applying one technique oranother of judicial minimalism. This dynam-ic will undoubtedly fuel the ongoing debateabout whether the Roberts Court is com-mitted to minimalism and, if so, whetherthat’s a good thing.

I should probably begin by defining theseterms. Modern judicial minimalism as a dis-tinctive theory of decisionmaking is usuallycredited to Professor Cass Sunstein ofHarvard Law School, who coined the term

and is the leading academic proponent of thisapproach to judging. Sunstein proposes thatjudges should generally avoid broad rules andabstract theories and attempt to focus theirattention only on what is necessary to resolveparticular disputes. He advocates a practiceof saying no more than necessary to justify anoutcome and leaving as much as possibleundecided. Minimalist judging of theSunstein variant proceeds along two dimen-sions. First, judicial opinions should be nar-row rather than wide, deciding the case athand while avoiding pronouncing rules forresolving future cases. Second, judicial opin-ions should be shallow rather than deep,avoiding large theoretical controversies andissues of basic principle. Judicial opinionsshould rely instead on incompletely theorizedagreements that enable judges with diversephilosophical commitments to join in bot-tom-line judgments, leaving the more funda-mental questions of principle undecided.

Modern minimalism is justified primarilyon pragmatic grounds. Minimalist decisionmethods—so the argument goes—account forthe limitations on judicial competence and inparticular the limits on the judge’s ability toaccurately assess the consequences of a deci-sion one way or the other. Narrow, shallowdecisions reduce the risk and cost of error.Minimalist decisions are also said to be morepluralistic, demonstrating respect for diverseperspectives by leaving fundamental mattersof principle unaddressed. Minimalism recom-mends itself for other reasons, too. It claims topromote stability and predictability, to main-tain flexibility for future courts, and toempower democratic deliberation by givingpolitical decisionmakers room to maneuverand respond to constitutional questions leftopen by the Supreme Court.

On the surface, the theory sounds like it’slimited to process values, but it’s not.Substantively, minimalism starts from a pre-

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P O L I C Y F O R U M

Originalism v. MinimalismO n September 17, 1787, the delegates to the Constitutional Convention

gathered in Philadelphia’s Independence Hall to sign the newly draftedU.S. Constitution. Every year, to celebrate that momentous date in liber-

ty’s history, the Cato Institute hosts a daylong conference. At the 13th AnnualConstitution Day event this year, the Hon. Diane Sykes—a federal judge on the U.S.Court of Appeals for the Seventh Circuit and a former justice of the WisconsinSupreme Court—delivered the B. Kenneth Simon Lecture on ConstitutionalThought. In her address, excerpted below, Judge Sykes examined the pitfalls of modern-day minimalism, a legal approach that emphasizes decisions that are bothnarrow and shallow. She argued instead that constitutional interpretation shouldremain anchored in the original meaning of the Constitution’s text, which is the sourceof the Court’s authority and legitimacy.

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P O L I C Y F O R U M

sumption of deference to the politicalbranches. It self-consciously avoids invalidat-ing acts of the legislative and executivebranches either by upholding them on themerits or by using various techniques foravoiding constitutional questions. The pointof defaulting to deference is to recognize thelimited role of the federal judiciary and tomake a large space for democratic self-gov-ernment. Minimalism also advocates a strongversion of stare decisis; consistent adherence toprecedent promotes stability and predictabil-ity, thereby preserving the Court’s institu-tional interests. On a more philosophicallevel, modern minimalism promotes itself as ahedge against judicial supremacy. It calls onjudges to go slowly and in small steps.

The emphasis on incrementalism andgradualism evokes the philosophy ofEdmund Burke, who viewed governance as apractical endeavor guided by experience andwas skeptical of grand political theories.Burke counseled deference to long-settledpractices and traditions tested by experi-ence and the collective wisdom of societyaccumulated over generations. He held thecommon law in high regard.

Of course, the Founding generationdidn’t need a theory of judicial minimalism.The common-law tradition, as it was under-stood and practiced at the time, was itselfessentially minimalist, and important mini-malist features are embedded in our consti-tutional design. The common law as appliedin the courts of the new American states wasbased on English customary law and in theBlackstonian tradition was found, not made.

The philosophical terrain was also differentthan it is now. The Framers inherited a strongnatural-rights tradition, but they also under-stood that because natural-rights principlesare quite general—today we would say “under-determined”—the judges of the new federaljudiciary, like their counterparts in the states,would be called upon to exercise a substantialelement of judgment in individual cases. As aconstraint on that authority, Article III limits

the judicial power to cases or controversiesthat are explicitly judicial in nature. TheFramers rejected a more active political rolefor judicial review by deciding against aCouncil of Revision. Beyond the constrainingeffect of the case-or-controversy limitation,the Framing generation generally understoodthat federal judges would follow long-estab-lished norms of judicial practice. They wouldbe bound by rules and precedents, to para-

phrase the Federalist no. 78. This was thoughtto be a sufficient check against arbitrary deci-sions based on will rather than judgment.

That was the “old” form of judicial mini-malism; it was swept away by the legal realismof the 20th century. The “new” judicial mini-malism is a response to the realist idea thatappellate judges engage in discretionary law-making when they decide cases, including andespecially cases of constitutional interpreta-tion. If judges make constitutional law, thenwe need some theory or method to guidethem in that enterprise.

Now, no one in this room needs to bereminded of the normative constitutional the-ories that have been in contention since theNew Deal, but I’ll remind you anyway becauseit helps to place the new minimalism in itsproper historical perspective. The “living con-stitution” school of thought held sway in thedecades that spanned the Warren Court andthe early years of the Burger Court. This evo-lutionary approach authorized judges to inter-pret the core principles of the Bill of Rightsand the Fourteenth Amendment in a way thatreflects contemporary values and allowedthem to adapt the Constitution’s broad lan-guage to address modern conditions and prob-lems. In practice this theory produced therights revolution of the 1950s and 60s, whichwas aggressively interventionist in implement-ing social, political, and legal reform by judicialdecree. The results were in some cases a virtueand in others, well, not so much. But in all casesthe theory empowered the judiciary to deploythe Constitution as a malleable instrument of social and legal change at the expense of thedemocratic process.

The conservative counterrevolutionbegan in earnest in the 1980s and initiallyfocused on restoring the practice of restraint,understood as judicial deference to the policychoices and value judgments of the politicalbranches. In the early years, the primary con-cern was to stand athwart the jurisprudenceof the Warren Court yelling, “Stop!” (apolo-gies to William F. Buckley). But the emphasison restraint did not address how theConstitution ought to be interpreted andapplied. That would come later, as originalismwas recovered, developed, and refined.

The animating principles of originalismarise from the legal justification for judicialreview—the duty to decide cases according tolaw, including the law of the Constitution.Briefly stated, the basic theory is this: Becauseour Constitution is written, unlike the Britishconstitution, and because it is supreme lawadopted by the people as the original sover-eign that brought the American government

HON. DIANE SYKES

“A unifying theory of minimalism is both unworkable

and unwise.”

November/December 2014 CATO POLICY REPORT • 11

into being, constitutional interpretationought to be grounded in the public meaningof the text as understood at the time of ratifi-cation. On this view, constitutional adjudica-tion begins with an inquiry into the meaningand scope of the provision in question basedon the Constitution’s original meaning.

Anchoring constitutional adjudication inthe document’s text, structure, and history isthought to best legitimize the power of judi-cial review. We all know Marbury v. Madison.The judiciary’s authority to set aside an other-wise valid law in the name of the Constitutionarises by inference from the judges’ duty toapply the law in individual cases. Originalismholds that the interpretive inquiry into thelaw of the Constitution ought to be groundedin, and tethered to, the principles fixed in itstext and structure.

Originalism first established a foothold inthe legal academy and eventually arrived atthe Supreme Court. Professor Sunstein’sminimalism is a response to the rise of origi-nalism and is meant to counter it. Minimalisttheory occupies some common ground with what has come to be known as judicialpragmatism, which is a flexible approach to judging that focuses on the conse-quences of judicial decisions. The aim ofpragmatism is to achieve good overall out-comes, although its practitioners differ intheir account of what is a good outcome.Minimalism and pragmatism are overlap-ping theories of consequentialist judging.Both mix law with politics.

This brings me to my final point aboutmodern judicial minimalism: the theory isflexible about when judges should proceedminimally. It explicitly acknowledges thatnot every case calls for a minimalist ruling. AsSunstein puts it, “[t]he pragmatic founda-tions of minimalism suggest that constitu-tional law should not be insistently or dog-matically minimalist.” In other words, thereare times and places in which minimalism isrightly abandoned. There’s a nonexclusive,multifactor test for determining when it’s

best to issue a minimalist decision and whenit’s best to go maximalist—but you probablyguessed that already.

It should be clear from this discussionthat although minimalism is an approach tojudging, it’s not a theory of constitutionalinterpretation. Unlike originalism, it’s not amethod for determining the meaning, scope,and application of the Constitution or theliberty guarantees in the Bill of Rights.Instead, it’s a theory of deference. Judgesshould defer to the political branches of gov-ernment and to the decisions of priorcourts—except when they shouldn’t. It’s also

a theory of avoidance. Judges should notmake broad pronouncements on founda-tional matters of constitutional principle—except when they should. Got that?

As you’ve probably gathered, minimalismcan and has been criticized for offering nogenuine guidance to judges. As the philoso-pher Tara Smith has noted, “the instructionto the judiciary to ‘minimize your impact’ ishollow.” Critics have also attacked minimal-ism for privileging the doctrinal status quo.Sai Prakash, a law professor at the Universityof Virginia, has noted that whereas original-ism privileges the original public meaning ofthe Constitution, minimalism—because it isprecedent focused—tends to privilege theviews of the Warren and Burger Courts.Other critics have argued that by promotingshallow decisionmaking—especially in casesinvolving broad constitutional principles likefree speech and equality—the theory permitsjudges to smuggle in their own unstated andunexamined ethical assumptions and prefer-

ences. And as I have already noted, the prag-matic flexibility in minimalist theory pro-vides no rule or standard for deciding when itshould apply and when it should not.

For my part, I tend to side with the critics.A unifying theory of minimalism is bothunworkable and unwise. The Article III con-straints on the judicial power already enforcea degree of minimalism, and all judges respectand reason from precedent. We have well-established doctrines to ensure that judges donot unnecessarily decide constitutional ques-tions, and the norm of analogical reasoninghas a natural constraining effect. In otherwords, minimalism is inherent in standardjudicial method. We do not need a heavy the-oretical thumb on the scales. What’s impor-tant is how the traditional sources of law andlegal interpretation—text, history, canons ofinterpretation, precedent, and other well-established tools of the judicial craft—are pri-oritized, weighted, and applied.

At a time of deep political polarization,the modesty and consensus values claimed byjudicial minimalism seem especially attrac-tive. Restraint is indeed a judicial virtue.Judicial mistakes on constitutional questionsare extraordinarily difficult to fix. Arrogatingtoo much power to the judiciary distorts ourpolitics and undermines our ability to demo-cratically shape and alter our basic legal,social, and economic institutions. But strongavoidance and deference doctrines are notthe answer. They may serve prudential orpolitical concerns, but they are not necessaryto enforce the separation of powers andindeed may undermine that critical feature inour constitutional design. The Court’s legiti-macy arises from the source of its authority—which is, of course, the Constitution—and isbest preserved by adhering to decision meth-ods that neither expand, nor contract, butlegitimize the power of judicial review. TheCourt’s primary duty, in short, is not to mini-mize its role or avoid friction with the politi-cal branches, but to try as best it can to get theConstitution right.n

“The Court’s legitimacy arises

from the source of its authority—which

is, of course, theConstitution.

”