Timothy P. O'Neill

Chicago Daily Law Bulletin
Volume 151, No. 222
Copyright (c) 2005 by Law Bulletin Publishing Company

November 11, 2005

DEVISING NEW LABELS FOR MEN AND WOMEN IN ROBES

For more than a decade the U.S. Supreme Court was comprised of the same nine justices. Now we are facing a court that will have not just one, but two different members. What does this mean for criminal law?

First, it is important to understand how classifications of ideology have changed. The old liberal, conservative, activist and non-activist labels now seem as dated as Whigs and Loco Focos.

Cass Sunstein of the University of Chicago establishes his own taxonomy in his recent book "Radicals in Robes" (Basic Books, 2005). Sunstein insists there are four categories: majoritarians, perfectionists, minimalists and fundamentalists.

Majoritarians believe in judicial deference. They contend that the court should give the benefit of every doubt to other branches of government. Perhaps the most famous majoritarian justice was Oliver Wendell Holmes. His philosophy was epitomized by his famous remark "If my fellow citizens want to go to hell, I will help them. It's my job." Sunstein notes that no current members of the court are committed majoritarians.

Sunstein contrasts this with the perfectionists. If a perfectionist sees that his fellow citizens want to go to hell, then he will hijack the plane. A perfectionist believes that "the continuing judicial task is to make the document as good as it can be by interpreting its broad terms in a way that casts its ideals in the best possible light." Famous perfectionists on the court have included Earl Warren, William Brennan, Thurgood Marshall and William Douglas; perhaps the most famous perfectionist academic is Ronald Dworkin.

But it is the final two groups that Sunstein characterizes as the principal antagonists in constitutional law today: the fundamentalists and the minimalists.

Fundamentalists believe that the Constitution must be interpreted according to the "original understanding" of the ratifiers. The central constitutional questions are thus historical ones. And once the answers are determined, fundamentalists are bound by them. There is no room for judges "making law."

Needless to say, fundamentalists believe the Supreme Court made a wrong turn somewhere around the New Deal. They believe that the Constitution does not need to be reinterpreted but, rather, needs to be restored. This fairly radical view is best summed up by the fundamentalists' reference to the "Constitution in Exile." (This was coined by Judge Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit, who you may recall was merely one toke over the line from a seat on the Supreme Court in 1987.) Justices Antonin Scalia and Clarence Thomas, with their tropism toward the Federalist Society, can be characterized as fundamentalists.

Sunstein pulls no punches; he admits that one of the goals of his book is to show what is wrong with fundamentalism. And while your heroes may always have been cowboys, Sunstein's are minimalists. According to Sunstein, minimalists dislike ambitious theories. They avoid taking sides in large-scale controversies. They avoid taking stands on the most contested questions of constitutional law. They prefer narrow decisions that can attract support from people holding many different theoretical positions. Unlike fundamentalists, minimalists actually seek "incompletely theorized agreements."

As Sunstein notes, "Minimalists believe that a free society makes it possible for people to agree when agreement is necessary, and unnecessary to agree when agreement is impossible." Minimalists see one of the chief functions of the court as furthering, rather than preempting, democratic dialogue. Minimalists include Justices Ruth Bader Ginsburg, Sandra Day O'Connor, and Anthony M. Kennedy, while perhaps the most famous minimalist of the 20th century was Felix Frankfurter.

It is fascinating to see how Sunstein's dichotomy is reflected in only a slightly different way in Mark Tushnet's "A Court Divided" (W.W. Norton, 2005). The title has a double meaning. On the one hand, it reflects the obvious recent division on the Supreme Court between liberals and conservatives. But Tushnet adds another cleavage. He characterizes the Rehnquist Court as a Republican Supreme Court that was divided between two very different kinds of Republicans. On the one side were Justices David H. Souter, O'Connor and Kennedy, whom he variously describes as "traditional Republicans," "older Republicans" and "country club Republicans." Their concerns included issues such as limiting the size of the national government as well as limiting government regulation of business.

Tushnet contrasts these "traditional Republicans" with what he calls "modern Republicans." Epitomized by Scalia and Thomas (and occasionally the late William H. Rehnquist), these are Republicans from the Goldwater-Reagan- Federalist Society mold. Their concerns include originalist interpretation of the Constitution and social issues such as abortion.

Interestingly, what Tushnet sees as a distinction between "traditional Republicans" and "modern Republicans" is very similar to Sunstein's minimalist vs. fundamentalist dichotomy.

And if further proof is needed of the Zeitgeist, consider the subtitle of Tinsley E. Yarbrough's new biography: "David Hackett Souter: Traditional Republican on the Rehnquist Court" (Oxford, 2005). Yarbrough reminds us that during Souter's confirmation hearings it was revealed that the second Justice John Marshall Harlan was one of the justices Souter most admired. Harlan -- the epitome of traditional Republican, the poster boy for minimalism. Fundamentalist revival holds no interest for Souter.

According to Yarbrough, "Unlike Scalia, Thomas and, to a somewhat more attenuated degree, Rehnquist, Souter quickly proved unwilling to uproot or substantially modify existing precedents -- what he has repeatedly referred to in his opinions as 'our settled law' -- absent substantial justification." For a minimalist such as Souter, the Constitution is not "in exile," but is alive and well.

For a firsthand account of the judicial philosophy of a minimalist justice, we now have Stephen Breyer's "Active Liberty: Interpreting Our Democratic Constitution" (Knopf, 2005). He specifically distances himself from what he refers to as "originalist," "literalist," and "textualist" theories. He warns against "adopting an overly rigid method of interpreting the Constitution -- placing weight upon 18th-century details to the point at which it becomes difficult for a 21st-century court to apply the document's underlying values."

Sounding very much like John Hart Ely, Breyer argues that the court's role is to reinforce democratic values. He contends that the court needs to support "active liberty": the ability of American citizens to share in the nation's sovereignty by participating in a robust civic dialogue.

So where does this leave criminal law in the Supreme Court?

One characteristic of the fundamentalist justices has been to rely on 18th-century common law to supply not just background but answers to Fourth Amendment interpretation. (See, for example, Scalia's opinion in Wyoming v Houghton, 526 U.S. 295 (1999) and Thomas' opinion in Wilson v Arkansas, 514 U.S. 927 (1995).)

David Sklansky finds fault with this approach because there simply was no one "common law." He criticizes Scalia and Thomas because "they look sometimes to cases, sometimes to statutes, sometimes to commentaries. They look interchangeably to authorities from the 1600s and 1700s -- and sometimes also from the 1800s and early 1900s. They mix together English and American materials." David A. Sklansky, "The Fourth Amendment and Common Law," 100 Columbia L.Rev. 1739 (2000).

This use of common law as an "answer key" stands in stark contrast to the more flexible interpretive theories of justices such as Breyer and Souter.

So the issue of what the new Supreme Court's effect on criminal law will be may have less to do with the old liberal-conservative cleavage and more to do with the fundamentalist-minimalist or traditional Republican-modern Republican readings of the Constitution.

A final word on interpretation. Garry Wills recently criticized "original intent" theory by describing the Constitution as being "like a blueprint that should be a guide but not a prison to contractors working from it." Garry Wills, "Henry Adams and the Making of America" (Houghton Mifflin, 2005).

Wills then cited this sharp retort to original intent theorists: "All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications."

If the Federalist Society wishes to confront this apologist for robust judicial power, I can provide the source: James Madison's Federalist No. 37.