Radicals in Robes

by Cass R. Sunstein

Book Overview

Most people think that the Supreme Court has a rough balance between left and right. This is a myth; in fact the justices once considered right-wing have now taken the mantle of the Court's moderates,... This description may be from another edition of this product.

• Format: Paperback
• Language: English
• ISBN: 0465083277
• Release Date: December 2006
• Publisher: Basic Books
• Length: 320 Pages
• Weight: 0.90 lbs.
• Dimensions: 9.0" x 0.7" x 6.0"

Customer Reviews

Why less is sometimes more

This book has helped me to stregthen my view, that it is always dangerous to strive for a greater good by utterly human means. That is what the fundamentalists do. They believe to be in a position that allows them to pass judgement on everybody else, but not on themselves. A fundamentalist does not doubt his cause. That is frightening. Mr. Sunstein built a pretty strong case against such an approach to the founding document of every state - the constitution. Coming from a former Communist country, the Czech Republic, I do think that there is much at stake here. Especially when someone claims to hold the ultimate truth. Talk to our president about it. My only objection aims at the use of the notes, which are at times too vague to my liking, but that is quite a minor critique.

Don't Be Scared Off by the Title!

At first blush, one might think that "Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America" would be yet another supercharged contribution to the current on-going debate over the role of the federal courts. Instead, it turns out to be a very interesting and somewhat moderate discussion of theories of constitutional interpretation. For Sunstein, there are four basic approaches to interpretation that are competing: "fundamentalist" which involves textual adherence and "original meaning" as guides to interpretation (Justices Scalia and Thomas); "minimalist" which pragmatically only decides as much of an issue as is necessary and leaves related questions and ultimate broad announcement of constitutional principles for another day (Justice O'Connor); "perfectionists" who try and make the Constitution as much as it can be by using cases to announce highly democratic principles which cover all possible issues (e.g., Justice Breyer); and finally the "majoritarians" who want the political process to decide key issues and therefore argue for a high degree of judicial restraint (Judge Hand and Justices Holmes and Brandeis). Most of the book is devoted to exploring these various methods of interpretation juxtaposed against a wide range of issues decided by the Supreme Court, including the right to privacy, the right to marry, race and affirmative action, national security and separation of powers. Sunstein also talks about important concepts such as the "Lost Constitution," "traditionalism" and the "nondelegation doctrine," constant components of the fundamentalist approach. While a self-announced minimalist (see his solid book "One Case at a Time"), he is very balanced in his assessment of all four approaches, even agreeing with the fundamentalists on occasion (e.g., Roe v. Wade). Because the entire federal judiciary is much more conservative than 25 years ago, it is incumbent upon all of us to pay attention to not only what the Supreme Court decides but also the rationale behind its decisions. Sunstein's book is of immeasurable assistance in getting a handle on this fast-evolving area.

Actually not a bad book

Professor Sunstein's book provides an easy-to-understand description of the major theories of constitutional interpretation at play in the Supreme Court. Although identifying four streams of thought, he focuses on the two most predomiate on today's court, describing the two as "fundamentalism" and "minimalism." There are two things this book does particalarly well. First, it points out the absudities that would result from truly following a fundamentalist apporach to constitutional interpretation. Second, it demonstrates that the fundamentalists currently on the bench are often "false fundamentalists," abandoning fundamentalism when the result is contrary to what those on the polical right wing desire. Sunstein shows, for instance, that a fundamentalist (or originalist, or traditionalist) reading of the 14th Amendment would favor affirmative action programs, while those justices claiming loyalty to original intent ignore this to acheive the result the Republican party requires. Indeed, it appears that fundamentalists are "perfectionists" of the right: activist judges who are result-oriented under the guise of constitutional interpretation. This book argues for minimalism. But its defense of minimalism is not especially strong. It comes down to this : The only real choice today is between fundamentalism and minimalism and fundamentalism is awful; thus, minimalism is the way to go. While there is no doubt that fundamentalism is disastrous, not much is offered proactively in support of minimalism or to give strong reasons why majoritarionism or perfectionism should be rejected in its favor. To his credit, Sunstein is upfront that this book primarly argues in favor of minimalism as opposed to fundamentalism, but there is still a lot left out of the discussion. Certainly, minimalism appears sane when the only other choice is fundamentalism; however, these are not the only two choices. I subtracted a star because the book is not completely trustworthy. Page 93's reference to "Justice William Kennedy" caused me to re-read many passages carefully to make certain I was properly understanding what Sunstein was attempting to convey and that he had not erroneously left out an important word or two. Other minor errors leave the reader to wonder if what is printed is exactly what is intended. In addition, the book as a whole, but particulary the introduction, suffers from abundant over-use of "of course" and "actually." The introduction reads as if it was dictated but never proof read in this respect.

A timely book about the struggle to understand the constitution

No more timely book concerning the American judicial system could have appeared at this time. As I write this review we are awaiting the confirmation of two new supreme court justices, a change that could transform the nation for decades to come, especially given the recent penchant for appointing young judges. Like many Americans, I'm extremely concerned about trends in the supreme and appeals courts of recent decades. Even many Republican legislators have grown increasingly concerned about a growing tendency of many Federalist Society justices on all levels to overturn federal legislation, in effect expanding the power of the courts and decreasing the power of our elected officials. With increasing talk of a Constitution in Exile and a willingness of very conservative judges to overturn well-established legal precedent and bipartisan legislation, this truly is a critical point in American legal history. Cass Sunstein takes head on the predominant activist judicial philosophy in this clearly written study and tries to explain the reason why on legal grounds it is both highly suspect as an interpretative method and undesirable in its potential effects. He begins by insisting that "liberal" versus "conservative" is an extremely unhelpful distinction. He instead defines four methods of judicial interpretation: 1) Perfectionism, which attempts to make the constitution as good as it can be, 2) Majoritarianism, which attempts to reduce the role of the court and overwhelmingly favor legislation by elected officials, 3) Minimalism, which abjures making decisions about large principles and issues, and instead seeks to make small incremental changes in the constitution by making very narrow judicial decisions, and 4) Fundamentalism, which holds that the constitution must be interpreted according to the intent of the ratifiers (not the framers) of the constitution. Sunstein points out that while Perfectionism has played a significant role in the past (indeed, the greatest American Justice ever, John Marshall, could be described as a Perfectionist, while many of the major decisions, such as Brown v. Board of Education, can be described as Perfectionistic in nature), no one currently on the supreme court can be so labeled. Likewise, though one of the most famous of all Supreme Court justices, Oliver Wendell Holmes Jr., could be described as a Majoritarian, no one today either on the Supreme Court or the Appeals courts holds that position. Most justices, according to Sunstein, take a Minimalist position, which is the approach he defends. But he believes that the stability and integrity of the American legal system is being threatened by a growing number of Fundamentalist judges, and the book is largely a defense of Minimalism and a critique of Fundamentalism. For the most part Sunstein restricts himself to purely legal considerations, though he hints at a truth that most journalists would point out rather more strongly than he does: that Fundame

Crisp powerful analysis

Cass Sunstein, a University of Chicago Law professor, political scientist, and former Supreme Court clerk here brings his powerful intellect to bare on the task of critically deconstructing the so-called "Fundamentalist" also known as Origin Intent method of examining the constitution. In other, less capable hands this effort might well have devolved into an anti-conservative rant, but to professor Sunstein's credit he instead delivers an even handed, thought provoking, and often provocative look at this growing legal movement. More impressive still, he delivers all this in a short, readable, highly entertaing text. Sunstein does not simply reject conservative constitutional analysis or even the original intent school. He acknowledges that it can often be compelling and further concedes it to be a reasonable approach. However, he goes on from there to point out its two major flaws. The first and most galling, is that original intent advocates follow the principle of examining history of determining the thoughts of drafters, except when it will conflict with other political ideology. Thus, while Justices Scalia and Thomas tout their devotion to this method, they also reject affirmative action. Unfortunately, given that the same congress that drafted the 14th Amendment after the Civil War also saw Affirmative Action as a just and reasonable effort to compensate for past injustices against African Americans -- these efforts executed through the Freedman's Bureau -- their efforts fail there own judicial test. Given that the hallmark of any reasonable judicial philosophy requires consistency, even when they lead a judge to a decision that conflicts with his personal politics, one can only question justice's Scalia and Thomas's judicial temperament. The second problem Sunstein sees, which proves far more profound, is that advocates of this ideology by limiting the powers of congress and often exempting the States from the Bill of Rights intend to transform the very nature of the citizenry relationship with their government. Sunstein never claims that this renders the philosophy illegitimate, quite the opposite, but does cogently argue that few Americans, even those who advocate this position, understand the ramifications of its end result. By sharply limiting the powers of congress in areas of interstate commerce and the ability to delegate authority, Sunstein points out that these radical Fundamentalists would eliminate such institutions as the Environmental Protection Agency, the Security and Exchange Commission, and other institutions that protect American's in many crucial spheres. Would most American's really want to eliminate the Federal Government's power to protect the environment, worker's safety, and investors? Sunstein rightly points out that most polls indicate exactly the opposite. Sunstein further strengthens his point by indicating some of the most radical views taken by members of the court embracing this ideology.