Table of Contents

Part 1 Argument: leaving things undecided; democracy-promoting minimalism; decisions and mistakes; minimalism's substance. Part 2 Applications: no right to die? affirmative action casuistry; sex and sexual orientation; the first amendment and new technologies. Part 3 Antagonists: width? Justice Scalia's democratic formalism; depth? from theory to practice; conclusion - minimalism and democracy.

Promotional Information

Labeling and 'bean counting' of the Supreme Court and its Justices are frequently all that Americans get by way of description of the activities of the highest court in our system. Even the legal profession finds it is easier to label than to analyze. That is why Cass Sunstein's book is just what the country needs--an understandable analysis of how this Supreme Court goes about its decision making. If it seems to make the 'conservatives' the 'activists' and the 'liberals' the 'strict constructionists,' that only proves that those labels are not very useful and more often than not reflect the eye of the beholder. Nor can Professor Sunstein's use of the word minimalism be dismissed as just another pretty label. The term aptly describes what has been the very touchstone of both the common law and constitutional theory in America for a long, long time. The book represents Sunstein at his best. -- Abner J. Mikva, former Chief Judge, U.S. Court of Appeals for the D.C. Circuit Against the tide of those who lament the lost Warren Court or hunger for its conservative successor, Cass Sunstein argues that the current Supreme Court correctly avoids grand constitutional theories in favor of narrow decision making that leaves most matters of distribution and social justice to be decided by democratic majorities. Written with great lucidity, verve, and mastery of contemporary currents in political theory and constitutional law, this is the first judicial philosophy of and for the post-Bork appointees to the Court. -- Kathleen M. Sullivan, Stanford Law School An original and deftly executed contribution to the voluminous literature on constitutional interpretation. Sunstein is utterly at home with the details of constitutional opinions and with recent work in political theory. Scrutinizing the work of the current Supreme Court in various legal domains, he urges the democratic merits of its caution. This is a book not just for professors and lawyers, but for citizens. -- Don Herzog, University of Michigan Law School

About the Author

Cass R. Sunstein is Robert Walmsley University Professor at Harvard Law School. Recently named Senior Counselor to the US Department of Homeland Security, he is the author of many books, including Conformity and How Change Happens.

Reviews

With his new book, Sunstein joins a distinguished line of liberal constitutional theorists who have defended the democratic value of judicial modesty...[One Case at a Time is] uniquely well-suited to an age that has lost its constitutional faith...No other scholar has captured the temper of the current majority as neatly as Sunstein, nor has anyone else attempted to provide a theoretical justification for what other observers took to be ad-hockery or improvisation. For these reasons, Sunstein's book deserves close attention.
*New Republic*

Sunstein is among this country's most respected legal scholars [and] One Case at a Time reflects [his] mastery of Supreme Court law, of constitutional theory and of political science...One Case at a Time presents a fascinating argument: that there is a hidden majority of [judicial minimalist] Justices, that it is right in what it is doing and that it is adjudicating in a way that moves beyond the recent ideological stalemate about the Supreme Court's role...[Sunstein's] book demonstrates what a shame it is that the Clinton White House hasn't picked him to serve as a Federal judge. The Reagan and Bush Administrations put accomplished legal theorists on the bench to turn their conservative vision into legal reality. But the Clinton team has failed to follow the Reagan-Bush lead... One Case at a Time makes that reluctance look like a significant lost opportunity. Respectful of the political branches, mindful of the role of the Supreme Court in the whole of American government, this admirable book makes a judicious case for a philosophy of judging as a humble, difficult, essential art. The book also demonstrates that Sunstein would practice that art well.
*New York Times Book Review*

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 Economist*

With One Case at a Time, Cass Sunstein may well become known as the Nathan Detroit of constitutional law. For this is a shrewd and clever book.
*Washington Times*

In One Case at a Time, Sunstein describes the current Supreme Court's 'judicial minimalism'--deciding cases as narrowly as possible, without widely applicable rules. This position, he urges, can support deliberative democracy, particularly if the issues involved are complex and no citizen consensus has emerged. Sunstein outlines his arguments and applies it in analyzing recent decisions on 'affirmative action, discrimination on the basis of sex and sexual orientation, the right to die, and new issues of free speech raised by...communications technologies.' He then addresses alternatives to minimalism, mainly Justice Scalia's 'democratic formalism' and the complaint that minimalist decisions lack theoretical depth as well as breadth, concluding by summarizing his view of the place of judicial minimalism in a democracy.
*Booklist*

Labeling and 'bean counting' of the Supreme Court and its Justices are frequently all that Americans get by way of description of the activities of the highest court in our system. Even the legal profession finds it is easier to label than to analyze. That is why Cass Sunstein's book is just what the country needs--an understandable analysis of how this Supreme Court goes about its decision making. If it seems to make the 'conservatives' the 'activists' and the 'liberals' the 'strict constructionists,' that only proves that those labels are not very useful and more often than not reflect the eye of the beholder. Nor can Professor Sunstein's use of the word minimalism be dismissed as just another pretty label. The term aptly describes what has been the very touchstone of both the common law and constitutional theory in America for a long, long time. The book represents Sunstein at his best.
*Abner J. Mikva, former Chief Judge, U.S. Court of Appeals for the D.C. Circuit*

Against the tide of those who lament the lost Warren Court or hunger for its conservative successor, Cass Sunstein argues that the current Supreme Court correctly avoids grand constitutional theories in favor of narrow decision making that leaves most matters of distribution and social justice to be decided by democratic majorities. Written with great lucidity, verve, and mastery of contemporary currents in political theory and constitutional law, this is the first judicial philosophy of and for the post-Bork appointees to the Court.
*Kathleen M. Sullivan, Stanford Law School*

An original and deftly executed contribution to the voluminous literature on constitutional interpretation. Sunstein is utterly at home with the details of constitutional opinions and with recent work in political theory. Scrutinizing the work of the current Supreme Court in various legal domains, he urges the democratic merits of its caution. This is a book not just for professors and lawyers, but for citizens.
*Don Herzog, University of Michigan Law School*

With his new book, Sunstein joins a distinguished line of liberal constitutional theorists who have defended the democratic value of judicial modesty...[One Case at a Time is] uniquely well-suited to an age that has lost its constitutional faith...No other scholar has captured the temper of the current majority as neatly as Sunstein, nor has anyone else attempted to provide a theoretical justification for what other observers took to be ad-hockery or improvisation. For these reasons, Sunstein's book deserves close attention. -- Jeffrey Rosen * New Republic *
Sunstein is among this country's most respected legal scholars [and] One Case at a Time reflects [his] mastery of Supreme Court law, of constitutional theory and of political science...One Case at a Time presents a fascinating argument: that there is a hidden majority of [judicial minimalist] Justices, that it is right in what it is doing and that it is adjudicating in a way that moves beyond the recent ideological stalemate about the Supreme Court's role...[Sunstein's] book demonstrates what a shame it is that the Clinton White House hasn't picked him to serve as a Federal judge. The Reagan and Bush Administrations put accomplished legal theorists on the bench to turn their conservative vision into legal reality. But the Clinton team has failed to follow the Reagan-Bush lead... One Case at a Time makes that reluctance look like a significant lost opportunity. Respectful of the political branches, mindful of the role of the Supreme Court in the whole of American government, this admirable book makes a judicious case for a philosophy of judging as a humble, difficult, essential art. The book also demonstrates that Sunstein would practice that art well. -- Lincoln Caplan * New York Times Book Review *
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 Economist *
With One Case at a Time, Cass Sunstein may well become known as the Nathan Detroit of constitutional law. For this is a shrewd and clever book. -- Gary McDowell * Washington Times *
In One Case at a Time, Sunstein describes the current Supreme Court's 'judicial minimalism'--deciding cases as narrowly as possible, without widely applicable rules. This position, he urges, can support deliberative democracy, particularly if the issues involved are complex and no citizen consensus has emerged. Sunstein outlines his arguments and applies it in analyzing recent decisions on 'affirmative action, discrimination on the basis of sex and sexual orientation, the right to die, and new issues of free speech raised by...communications technologies.' He then addresses alternatives to minimalism, mainly Justice Scalia's 'democratic formalism' and the complaint that minimalist decisions lack theoretical depth as well as breadth, concluding by summarizing his view of the place of judicial minimalism in a democracy. -- Mary Carroll * Booklist *
Labeling and 'bean counting' of the Supreme Court and its Justices are frequently all that Americans get by way of description of the activities of the highest court in our system. Even the legal profession finds it is easier to label than to analyze. That is why Cass Sunstein's book is just what the country needs--an understandable analysis of how this Supreme Court goes about its decision making. If it seems to make the 'conservatives' the 'activists' and the 'liberals' the 'strict constructionists,' that only proves that those labels are not very useful and more often than not reflect the eye of the beholder. Nor can Professor Sunstein's use of the word minimalism be dismissed as just another pretty label. The term aptly describes what has been the very touchstone of both the common law and constitutional theory in America for a long, long time. The book represents Sunstein at his best. -- Abner J. Mikva, former Chief Judge, U.S. Court of Appeals for the D.C. Circuit
Against the tide of those who lament the lost Warren Court or hunger for its conservative successor, Cass Sunstein argues that the current Supreme Court correctly avoids grand constitutional theories in favor of narrow decision making that leaves most matters of distribution and social justice to be decided by democratic majorities. Written with great lucidity, verve, and mastery of contemporary currents in political theory and constitutional law, this is the first judicial philosophy of and for the post-Bork appointees to the Court. -- Kathleen M. Sullivan, Stanford Law School
An original and deftly executed contribution to the voluminous literature on constitutional interpretation. Sunstein is utterly at home with the details of constitutional opinions and with recent work in political theory. Scrutinizing the work of the current Supreme Court in various legal domains, he urges the democratic merits of its caution. This is a book not just for professors and lawyers, but for citizens. -- Don Herzog, University of Michigan Law School