Radicals in Robes
Why Extreme Right-Wing Courts
Are Wrong for America
By Cass R. Sunstein
Hardcover, 281 pp
Basic Books, 2005
Ironically, James Madison envisioned the Supreme Court as
the people's protectors, but it hasn't worked out that way. And, with Judge
Samuel Alito's confirmation hearings for a seat on the highest court looming,
unless a majority in the US Senate have a stroke of decency and conscience to
reject him, this is the perfect time to review Cass R. Sunstein's book,
"Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for
Sunstein is a Karl N. Lewellyn Distinguished Service
Professor of Jurisprudence at the University of Chicago Law School. He also is
a contributing editor at The New Republic and The American Prospect.
The Constitution of the United States is a brief,
straightforward document that oftentimes seems to have been stood on its head
by the courts and Constitutional scholars. But that is a discussion for another
Sunstein lays out his views on the Constitution, what the
Supreme Court is and isn't, and divides justices and nominees into what he
calls the four approaches.
The first he calls "perfectionism," which is
favored by many American liberals, who read the Constitution's text in a way to
broaden the people's rights. Perfectionism played a major role in the Warren
Court, which banned racial segregation, prohibited compulsory prayer in public
schools, provided broad protection to political dissent and made the one
person, one vote rule, among others.
While Sunstein doesn't necessarily disagree with these
rulings or the Burger Court's Roe v. Wade decision, he feels the danger in
perfectionism is broad rulings that cause more division than they solve.
Sunstein prefers what he calls the "minimalist" approach -- the third
on his list -- in which the court takes tiny steps in recognizing rights --
even though he doesn't see all the rights in the Constitution that the
The second approach, he calls "majoritarianism."
Majoritarians, preferring a reduced role for the court, defer to the judgments
of elected representatives, unless the Constitution has been plainly violated.
One could define majoritarians in a nastier way: they are the prostitutes for
Congress and the executive. Sunstein sees even greater danger in this approach
than in "perfectionism," because such "bipartisan
restraint" would permit the other branches to do as they liked, whether it
is setting racial quotas or banning same-sex intercourse.
The fourth approach, which Sunstein deems the most dangerous
of all, he labels "fundamentalism." He wrote, "As a
Constitutional creed, fundamentalism bears an obvious resemblance to religious
fundamentalism. Religious fundamentalism usually represents an effort to
restore the literal meaning of a sacred text. For fundamentalists, it is
illegitimate to understand the words of those texts in a way that departs from
the original meaning or that allows changes over time. 'Strict construction' of
the Constitution finds a parallel in literal interpretation of the Bible or the
Koran. Some fundamentalists seem to approach the Constitution as if it were
directly inspired by God."
To fundamentalist lower court judges and Supreme Court
judges, they cast aside the Ninth Amendment that says, "The enumeration in
the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people," and contend if a right isn't
enumerated, it doesn't exist, except when it suits the purpose of these
judicial activists. And you were led to believe the judicial activism was the
province of only liberal or "perfectionist" judges and justices. Sunstein
dispels that myth.
In his failed bid for a seat on the high court, Judge Robert
Bork, a fundamentalist who clings to so-called "original intent,"
called the Ninth Amendment an "inkblot" on the Constitution, arguing
there is no right to privacy.
Alas, like many constitutional scholars, Sunstein, a
"minimalist," also is ambivalent about the Ninth Amendment,
preferring instead to grudgingly accept the court's "protection of privacy
through the Fourteenth Amendment's Due Process Clause, which forbids states from
depriving people of 'life, liberty, or property, without due process of
While Sunstein thinks "perfectionists" on the
liberal end of the scale can go too far, too fast in acknowledging the
unenumerated rights, he sees the "fundamentalists" on the
conservative end of the scale as far more perilous to our rights, because their
reading of the Constitution "would wreak havoc with established law"
by taking away protections people have come to reply on. He cites as an example
"allowing states to ban use of contraceptives by married couples."
He sees both groups as radicals in robes -- the
"perfectionists" setting off firestorms, such as Roe, with their
broad interpretations of rights and liberties and the
"fundamentalists" who would strip us of our rights and possibly limit
"liberty" to "freedom from prison or bodily restraint." Of
the two groups, though, the "fundamentalists," who want to restore
what they call the "Constitution in Exile," is the one to be feared.
Sunstein feels there are no "majoritarians"
currently on the court, but that could change if Samuel Alito is confirmed.
Alito has attempted to justify his writings by professing to be a boot-licking
company man focused on ingratiating himself with the boss. Does that mean he
has no particular ideology and will yield to the wishes of whoever occupies the
Oval Office? Since justices have been known to mix their approaches, might he
also be a "fundamentalist" in the mode of Antonin Scalia, who insists
the Constitution is not a living document but is stuck in the 18th century, or Clarence
Thomas, who doesn't believe in stare decisis (respecting precedent) and would
sweep away precedents that don't square with his views?
you agree or disagree with Sunstein's personal views, his book makes for
interesting reader and offers insight into the thinking of today's