One Case at a Time: Judicial Minimalism on the Supreme Court

One Case at a Time: Judicial Minimalism on the Supreme Court

One Case at a Time: Judicial Minimalism on the Supreme Court

One Case at a Time: Judicial Minimalism on the Supreme Court


In a lucid examination of specific cases, Mr. Sunstein demonstrates how [judicial minimalism] should be done and achieves what has so far been elusive, a genuine theory of judicial minimalism, which many judges strive for but often have difficulty describing or justifying.


The most remarkable constitutional case in recent years involved the “right to die.” the particular question was whether the Constitution confers a right to physician-assisted suicide. the Supreme Court appeared to say that the Constitution confers no such right; at least this was how the case was widely reported. But a careful reading shows something different. a majority of five justices merely said that there is no general right to suicide, assisted or otherwise, and it left open the possibility that under special circumstances, people might have a right to physician-assisted suicide after all. in other words, the Court left the most fundamental questions undecided. Far from being odd or anomalous, this is the current Court’s usual approach. in this way, the Court is part of a long historical tradition. Anglo-American courts often take small rather than large steps, bracketing the hardest and most divisive issues.

My goal in this book is to identify and to defend a distinctive form of judicial decision-making, which I call “minimalism.” Judicial minimalism has both procedural and substantive components. I devote more space to the procedural components, but the substance is also important.

Procedure and Substance

Procedure first: a minimalist court settles the case before it, but it leaves many things undecided. It is alert to the existence of reasonable disagreement in a heterogeneous society. It knows that there is much that it does not know; it is intensely aware of its own limitations. It seeks to decide cases on narrow grounds. It avoids clear rules and final resolutions. Alert to the problem of unanticipated consequences, it sees . . .

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