Book review: Power & personae
Cass Sunstein, Constitutional Personae: Heroes, Soldiers, Minimalists and Mutes, Oxford University Press (New York: 2015), 192 pp. (cloth), $24.95
Supreme Court commentators have found many different ways to analyze and describe the Court and the Justices, from labeling ideology and methodology to counting laugh lines at oral argument and evaluating opinion-writing reliance on the rhetoric in briefs. It is not easy to add interesting, new analysis to the mix.
But Harvard Law School professor Cass Sunstein offers a fresh way of thinking about the Court in a new book, Constitutional Personae: Heroes, Soldiers, Minimalists and Mutes.
As the title suggests, Sunstein divides Justices (and other federal judges) into four groups that transcend politics and ideology and that span Supreme Court history. The four personae that Sunstein describes are the hero, the soldier, the minimalist, and the mute. Sunstein is quick to note that these are descriptions of judicial behavior, not of personalities; this point matters because one Justice may fall into different categories, depending on the nature of the issue.
Sunstein is one of the nation’s most respected and prolific legal theorists, having written some two dozen books and co-authored another dozen. It will come as no surprise to those who follow his work that among the four personae, he strongly favors judicial minimalism. He shared this view more than a decade ago with his publication of One Case at a Time: Judicial Minimalism on the Supreme Court (2001). But before he puts his finger on the scale in favor of minimalism, Sunstein does an interesting and thought-provoking job of describing the four personae he has identified.
Judicial heroes take “big” and “bold” steps. They see an expansive role for the federal judiciary and are willing to use judicial power to achieve desired results. They “tend to have large ideas about national power, equality, liberty, property, speech, and sex,” Sunstein writes. This is a tricky category because, as Sunstein presents it, judicial heroism is often not to be admired. Dred Scott v. Sanford (1857), for example, is a product of judicial heroism because of its bold ambition to settle the slavery issue and invalidate federal law. Lochner v. New York (1905), touching off thirty years of economic substantive due process, is another example.
Judicial heroes may be both liberals and conservatives. Much of the work of the Court under Chief Justice Earl Warren qualifies, from Brown v. Board of Education (1954) to Miranda v. Arizona (1966), and Sunstein cites Justices William Brennan and Thurgood Marshall as paradigmatic examples of frequent liberal judicial heroes. On the current Supreme Court, Sunstein cites the work of Justices Antonin Scalia and Clarence Thomas in elevating gun rights under the Second Amendment and trying to expand protection for commercial speech under the First Amendment. He also includes the efforts of Justice Anthony Kennedy to expand liberty to encompass privacy and marital rights for gays and lesbians.
Judicial soldiers are the polar opposite of heroes, ready and willing to defer to the choices of the elected, political branches of government. Soldiers see the role of the Court more narrowly, following the orders of the Constitution and the political branches. Sunstein identifies the judicial restraint of Justice Oliver Wendell Holmes, Jr., as the model figure, citing in particular his dissent in Lochner, in which he admonished his colleagues against imposing their own economic theory and system of personal values on the words of the Constitution.
As evidence that no Justice ever remains in just one category, however, Sunstein describes the Holmes opinions on free speech as heroic rather than soldierly. Holmes departed from the deference to elected officials to promote the value of free speech for a democracy, especially in Abrams v. New York, the 1919 dissent in which he discussed the importance of “free trade in ideas” and the ability of “truth” to be accepted in “the competition of the market.”
Likewise, Justice Scalia may be both soldier and hero. Scalia’s willingness to overturn gun laws in District of Columbia v. Heller (2008) falls on the hero side of the ledger; to the extent that Scalia argued that the decision simply followed the language of the Second Amendment, his opinion was more deferential and soldierly.
Judicial minimalists eschew broad theories in favor of small, incremental steps, believing in a humble role for the judiciary. Both in this initial description and later in an entire chapter devoted to minimalism, Sunstein holds up as a model the work of the eighteenth-century political theorist, Edmund Burke; as Sunstein describes it, this means judges should take small steps, respecting tradition and experience in their judgments.
To capture the minimalist approach, Sunstein turns to a now oft-quoted statement in 2004 from John Roberts, now Chief Justice but then a judge on the U.S. Court of Appeals for the District of Columbia Circuit. Concurring in the 2004 case of PDK Laboratories v. U.S. Drug Enforcement Administration, Roberts wrote that “if it is not necessary to decide more, it is necessary not to decide more.” Classic minimalists in Sunstein’s view have been Justices Felix Frankfurter and Sandra Day O’Connor, although he also credits Chief Justice Roberts and Justice Ruth Bader Ginsburg on the current Court with sometime minimalism.
Sunstein suggests that two types of minimalists may be at work at times. Those who embody the theories of Burke recognize the importance and weight of established traditions, primarily as a way of assuring that judicial decisions are well-grounded. “Rational minimalists” require that traditions be justified before they will rely on them. Sunstein, himself, is largely in the Burke camp.
The final category is the judicial mute, the jurist who favors avoiding constitutional decisions if there are narrower grounds for resolving a dispute or if principles of justiciability counsel against reaching the merits of a claim. The exemplar of this approach, says Sunstein, was the Yale Law School professor Alexander Bickel. For the current Court, Sunstein says the classic example of judicial muteness was Hollingsworth v. Perry (2013), the ruling that rejected the standing of private individuals to defend California’s ban on same-sex marriages.
There is much more to glean from Sunstein’s book, which often feels like the reader is eavesdropping on Sunstein’s reflections on the Constitution. A few points stand out.
First, the constitutional personae transcend historical periods and may help us to focus on understanding our own perceptions of judicial roles. As promotional materials for the book point out, during the Warren Court era, liberals often embraced the image of judicial hero, urging the Court to buck legislative authority and read constitutional provisions expansively; conservatives in that era preferred soldiers who would follow the dictates of the elected branches. Those lines are sometimes reversed today, with liberals wanting soldiers to uphold the Affordable Care Act and to affirm renewal of the Voting Rights Act and conservatives looking for heroes who will act boldly to limit the authority of Congress and the scope of national power.
Second, Sunstein emphasizes the important point that the personae do not dictate theories of constitutional interpretation. Just the opposite is true, he argues: the personae reflect the choices Justices make about approaches to interpretation . Interpretation comes first, personae follow. As a result, the categories of personae may cut across different modes of interpretation. Originalists may be heroes in striking down legislative or executive action or soldiers in following the dictates of constitutional language.
Third, Sunstein engages in an interesting exploration of how the personae have emerged. He attributes their full development to a change in the Court beginning in 1941 – when, he demonstrates, the Court began to be more divided with more dissenting opinions that aired the Court’s differences. Before 1941, he argues, the Court seemed more harmonious in its views, not uniformly but as a general matter, and there was less occasion to see different personae among the Justices.
There are times when this glimpse into Sunstein’s constitutional conversation gets too deep into the weeds of discussion and interpretive differences among contemporary academic theorists and seems to stray from the most valuable analysis of the Justices and the Court. At those moments, the book seems to lack a much-needed flow chart. But overall, Sunstein offers a thoughtful, provocative new way of thinking about how and why Supreme Court Justices behave as they do.