Against Judicial Minimalism

At the beginning of this term of the Supreme Court, Cass Sunstein has praised judicial minimalism. Professor Sunstein argues that the justices should decide cases as narrowly as possible: “Minimalists . . .  insist on small steps and narrow, unambitious rulings. They want to resolve the specific problem at hand, but without pronouncing broadly on liberty or equality, or on the system of checks and balances.”

So described, minimalism is the antithesis of a principled jurisprudence. First, minimalism does not offer a method for discerning the Constitution’s meaning. One does not need to be an originalist who believes that the meaning of the Constitution is fixed at the time it was enacted to recognize that an interpretive theory has to give account of how it is following the meaning of the Constitution. It is that meaning which should govern the case, and the relevant principles may be either broad or narrow depending on the meaning. For instance, if one follows the original meaning that the term “session” in the Recess Appointments Clause is limited to the intersession of Congress, the holding will necessarily rule out recess appointments in all cases but appointments made at the intersession.

Second, minimalism is incompatible with the rule of law. Deciding cases based on their peculiar facts gives little guidance to citizens as to what their rights and obligations are. Indeed, the reductio ad absurdum of minimalism is to decide the case of A v. B for A or B without giving any reasons at all: that approach surely resolves the case by making as little law as possible! More generally, insofar as a case emphasizes particular facts for the sake of a narrow ruling, its holding provides little help for those trying to figure out what the Court will do in the next case.

Minimalism thus maximizes judicial discretion over time. This kind of discretion appeals both to those who believe the Court should a policymaking institution rather than a law-interpreting one or to those who simply do not like its current results. Thus, if one believe that the Constitution just furnishes a set of textual footholds for judges to make wise decisions case by case, minimalism is congenial precisely because it eliminates the constraint of principles that reach beyond a single case. If one believes that the current Court is out of step with one’s ideological preferences, minimalism minimizes the constraints of past precedent on future justices.

But for those who believe that Court distinguishes itself from the political branches precisely by the application of neutral principles that transcend policy preferences, minimalism is not a form of jurisprudence, but a marker of its absence.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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  1. says

    Nice post and argument. I would just add that Alexander Hamilton’s words in Federalist #78 reinforce your conclusion that judicial minimalism may be inconsistent with the rule of law. “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them…” At the extreme end, a judge who only decides the case and does not provide reasons–or who provides only bare minimum reasons–maximizes future judicial discretion, as you point out. I suspect Hamilton would think that preserved future judicial discretion to be the antithesis of judges being “bound down by strict rules and precedents.”

    • says

      Hamilton would have thought it important that judges follow precedents, but he would not have supported a Supreme Court announcing all kinds of rules that go beyond the facts of the case before them.

  2. says

    I usually agree with you, but I think you are completely wrong here. You are presenting an essentially rationalist, civilian model of law against the empiricist, common law method.

    “Judicial minimalism” is a rediscovery of what judges would have historically taken for granted: their authority derives from the need to resolve cases between litigants and is therefore limited to what is needed to resolve those cases. This was lost to legal realism, which sees adjudication, especially appellate adjudication, as just an inefficient form of legislation. But it is presumed by Article 3, Section 2 (which limits the judicial power to certain cases and controversies).

    One argument for Judicial Minimalism is about limiting the authority of a branch that has the unique power to have the final word on its own jurisdiction. Another is that as a species we are cognitively better at deciding concrete cases than pronouncing abstract principles. By all means, academics can try to discern a principle behind a series of cases, but it is a series of cases that judges are supposed to produce.

    In response to your first point, it is true that Judicial Minimalism doesn’t tell you how to interpret the constitution (or statutes), but that’s not what it is trying to do. All it says is that the judges should go as far, and no further, than they have to go to resolve a concrete dispute.

    On your second point, you express a legislative model of the “rule of law”. The alternative view is that we live in a web of unarticulated normative assumptions, which usually work together but are occasionally at cross purposes. The judicial job is to deicde a case in which those normative assumptions conflict. Retrospectively, we may see an articulable pattern in those decisions, but we can be more confident that the decisions are right than that the principles used to justify them are.

    • says

      You are right, but only up to a point. It is true that appellate judge (or even justices) are not master mathematicians who can derive with absolute logic and from agreed bases the correct formula (into which the particular facts need just to be plugged in) for every case. Law is too contested and indeterminate for that.

      However, it does not follow that we must abandon principles and reasons entirely, judging every case on whim or prejudice and offering nothing explanation that could bind us in future cases. That is the Cass-Sunstein or Stanley-Fish road to judicial despotism.

      Rather judges, even while admitting that no absolutely general principles can be stated, should state as broad principles as they confidently can as the grounds for their decisions. In subsequent cases, they must be bound by those enunciated principles or, at least, honestly confessing error and openly overrule them. Only when so constrained can a free society tolerate judicial power.

      • nobody.really says

        [J]udges, even while admitting that no absolutely general principles can be stated, should state as broad principles as they confidently can as the grounds for their decisions. In subsequent cases, they must be bound by those enunciated principles or, at least, honestly confessing error and openly overrule them.

        Great: When their broadly-announced principles err, they can simply overrule themselves. In the meantime, all the lower courts will be bound by these erroneously-pronounced principles. And far from achieving the goal of giving the public appropriate guidance about what the court will do, the court would have given broad erroneous guidance. So much better than leaving people in doubt, right?

        Admittedly, to some extent these are intractable problems. Courts will err, or change their minds. But we can minimize these problems if, instead of articulating the broadest principle possible, court articulate the narrowest principle possible that is still a principle. For example, don’t resolve cases on a constitutional basis when a statutory basis will do (and achieve the same results). Courts, like executives, should resist the temptation to go abroad looking for dragons to slay.

        Does this maximize judicial discretion? Yes — which is to say, maximize the breadth of arguments available to the parties. Courts should strive to be mindful to articulate principles for their decisions, and cognizant of how these principles may apply in hypothetical cases, but they should then resist the temptation to rule on those other cases — at least, insofar as principle will allow.

        You know, principled decision-making, as in:

        “Can you state the Rule in Shelley’s Case?”
        “Shouldn’t it be the same as the rule in anybody else’s case?”

        • gabe says


          You hit it on the head,

          I stand corrected. I should not have nominated you for the Speakers job – instead, I hereby nominate you for a Circuit Court Judgeship.

          I think you most effectively counter McGinnis’ argument in the above essay. McGinnis appears to be arguing that the man with $10k in his checking account, who withdraws only $250 for his groceries, rather than withdrawing all $10k to cover future purchases is somehow guilty of undue discretion.
          Discretion it is, indeed, when one limits one’s application of resources and power to the task at hand. He does preserve / reserve discretion to later purchase X,Y, or Z – yet would anyone assert that he is wrong to do so. Only a philosopher or an academic would make such a claim.

          No, it would appear that the “discretion” about which McGinnis complains is rather to be found in an overly broad (discretionary) application of a *principle* to all pending / future controversies and has the effect of a continual accretion of power to the Judiciary.

          Best to decide a case, justify it upon a principle and / or precedent or statute as you suggest and keep the *institutional* self-interest / aggrandizement to a minimum.

          Which Circuit Court would you prefer? You have my vote!!!

          • nobody.really says

            Oh, I’ve been on the “short list” for nominations several times. That’s a bit of a joke; see, I’m just not tall enough to command much respect. Ginsberg can pull it off, but not me. I can’t begin to tell you the number of hours I’ve wasted hunting for short circuits….

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