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

by Cass R. Sunstein

Abortion, affirmative action, the "right to die," pornography and free speech, homosexuality and sex as eagerly as the Supreme Court's rulings on these hot issues are awaited and as intently as they're studied, they never seem to settle anything once and for all. But something is settled in the process--in the incremental approach--as Cass Sunstein shows us in this instructive book.

One of America's preeminent constitutional scholars, Sunstein mounts a defense of the most striking characteristic of modern constitutional the inclination to decide one case at a time. Examining various controversies, he shows how--and why--the Court has avoided broad rulings on issues from the legitimacy of affirmative action to the "right to die," and in doing so has fostered rather than foreclosed public debate on these difficult topics. He offers an original perspective on the right of free speech and the many novel questions raised by Congress's efforts to regulate violent and sexual materials on new media such as the Internet and cable television. And on the relationship between the Constitution and homosexuality and sex discrimination, he reveals how the Court has tried to ensure against second-class citizenship--and the public expression of contempt for anyone--while leaving a degree of flexibility to the political process.

One Case at a Time also lays out, and celebrates, the remarkable constellation of rights--involving both liberty and equality--that now commands a consensus in American law. An authoritative guide to the Supreme Court, the book offers a new understanding of the American Constitution, and of the relationship between democracy and constitutionalism, and between rights and self-government.

Genres: Law

304 pages, Paperback

First published March 10, 1999

About the author

Cass R. Sunstein is an American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics, who currently is the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration. For 27 years, Sunstein taught at the University of Chicago Law School, where he continues to teach as the Harry Kalven Visiting Professor. Sunstein is currently Professor of Law at Harvard Law School, where he is on leave while working in the Obama administration.

Reviews

[B · Rating 2 out of 5]

Ultimately, "minimalism" seems to mean that the Supreme Court should not rule on more than what Sunstein says they should rule on. He has a list somewhere in the middle of this book of things that minimalism entails. It's mostly stuff that's been established as general principles, but it seems to have an ideological tinge or reading of those principles.

Moreover, I never escaped the feeling that Sunstein was cramming a bunch of unrelated essays together, which the endnotes seem to confirm is true.

A lot of the writing is good, but it seems to go all over the place, constantly making up new frameworks and discussing them without reminding the reader what they are.