The case against putting radical right-wingers on the bench
By Bev Conover
Online Journal Editor & Publisher

Jan 6, 2006, 01:24

Radicals in Robes
Why Extreme Right-Wing Courts
Are Wrong for America

By Cass R. Sunstein
ISBN: 0465083269
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 America."

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 time.

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 perfectionists do.

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 law.'"

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?

Whether you agree or disagree with Sunstein's personal views, his book makes for interesting reader and offers insight into the thinking of today's constitutional scholars.

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