Minimalism (Judicial)
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Judicial minimalism refers to a philosophy in
United States constitutional law The constitutional law of the United States is the body of law governing the interpretation and implementation of the United States Constitution. The subject concerns the scope of power of the United States federal government compared to the indi ...
that promotes a politically moderate viewpoint such as that of former Supreme Court justice
Sandra Day O'Connor Sandra Day O'Connor (March 26, 1930 – December 1, 2023) was an American attorney, politician, and jurist who served as an associate justice of the Supreme Court of the United States from 1981 to 2006. Nominated by President Ronald Reagan, O' ...
. It is often compared to other judicial philosophies such as judicial activism, judicial originalism, and judicial textualism. Judicial minimalism takes its approach from a limited method of decision-making conceived by
Edmund Burke Edmund Burke (; 12 January ew Style, NS1729 – 9 July 1797) was an Anglo-Irish Politician, statesman, journalist, writer, literary critic, philosopher, and parliamentary orator who is regarded as the founder of the Social philosophy, soc ...
. Originally stated in '' Liverpool, New York & Philadelphia Steamship Co. v. Commissioners of Emigration'' (1885), minimalism is one the seven rules of the constitutional avoidance doctrine established in '' Ashwander v. Tennessee Valley Authority'' (1936) that requires that the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all Federal tribunals in the United States, U.S. federal court cases, and over Stat ...
to "not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.


The minimalist viewpoint

Minimalists offer very small, case-specific interpretations of Constitutional Law as an alternative to what they see as the excesses of extremists on both sides. They believe that a stable Constitutional Law is in everybody's interest, and place great importance on the concept of precedent and ''
stare decisis Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases. Fundamental to common law legal systems, precedent operates under the principle of ''stare decisis'' ("to stand by thin ...
''. They argue that only very small interpretations away from precedent, narrowly applied, and based on the general direction of society constitute true
judicial restraint Judicial restraint is a judicial interpretation that recommends favoring the ''status quo'' in judicial activities and is the opposite of judicial activism. Aspects of judicial restraint include the principle of '' stare decisis'' (that new de ...
rather than any originalist or strict constructionist viewpoint (in opposition to conservatives), while still allowing for a
Living Constitution The Living Constitution, or judicial pragmatism, is the viewpoint that the U.S. constitution holds a dynamic meaning even if the document is not formally amended. Proponents view the constitution as developing alongside society's needs and ...
(albeit one with a much slower adaptation than many liberals would like). Depending on the minimalist's particular preferences, a minimalist on the court would be likely to either very slowly bolster or chip away at
abortion Abortion is the early termination of a pregnancy by removal or expulsion of an embryo or fetus. Abortions that occur without intervention are known as miscarriages or "spontaneous abortions", and occur in roughly 30–40% of all pregnan ...
precedents rather than proclaim a lasting ban on or legalization of abortion via Constitutional rulings. Justice Sandra Day O'Connor is often hailed by minimalists as their ideal Justice. In a concurring opinion in the 2011
Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
case '' NASA v. Nelson'', Justice
Antonin Scalia Antonin Gregory Scalia (March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectual an ...
derided minimalism as a "never-say-never disposition
hich Ij () is a village in Golabar Rural District of the Central District in Ijrud County, Zanjan province, Iran Iran, officially the Islamic Republic of Iran (IRI) and also known as Persia, is a country in West Asia. It borders Iraq ...
does damage for several reasons". Volokh, Eugene (2011-01-19
“Judicial Minimalism” (at Least of One Sort), Pro and Con
''
Volokh Conspiracy The Volokh Conspiracy ( ) is a Legal blogs, legal blog co-founded in 2002 by law professor Eugene Volokh, covering legal and political issues from an ideological orientation it describes as "generally Libertarianism in the United States, libertar ...
''
Justice
Samuel Alito Samuel Anthony Alito Jr. ( ; born April 1, 1950) is an American jurist who serves as an Associate Justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States. He was Samuel Alito Supreme Court ...
, writing for the majority, defended the Court's minimalist approach in choosing to "decide the case before us and leave broader issues for another day". Chief Justice John G. Roberts has been said to operate under an approach of judicial minimalism in his decisions, having stated, " it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case."


Summary and complaints against "judicial extremism"

Largely associated with Cass R. Sunstein, it is a viewpoint which criticizes the more
conservative Conservatism is a cultural, social, and political philosophy and ideology that seeks to promote and preserve traditional institutions, customs, and values. The central tenets of conservatism may vary in relation to the culture and civiliza ...
stance of
originalism Originalism is a legal theory in the United States which bases constitutional, judicial, and statutory interpretation of text on the original understanding at the time of its adoption. Proponents of the theory object to judicial activism ...
as being
judicial activism Judicial activism is a judicial philosophy holding that courts can and should go beyond the applicable law to consider broader societal implications of their decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
in disguise. Minimalists believe that a faithful application of originalist theory would result in a system of constitutional law in which modern societal standards would be ignored, in favor of the now-antiquated opinions held by the
Founding Fathers The Founding Fathers of the United States, often simply referred to as the Founding Fathers or the Founders, were a group of late-18th-century American revolutionary leaders who united the Thirteen Colonies, oversaw the War of Independence ...
, probably including their views on
gender equality Gender equality, also known as sexual equality, gender egalitarianism, or equality of the sexes, is the state of equal ease of access to resources and opportunities regardless of gender, including economic participation and decision-making, an ...
,
racism Racism is the belief that groups of humans possess different behavioral traits corresponding to inherited attributes and can be divided based on the superiority of one Race (human categorization), race or ethnicity over another. It may also me ...
, and other things, which modern society would find objectionable. Minimalists claim that conservatives who subscribe to originalism are likely to ignore
precedent Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases. Fundamental to common law legal systems, precedent operates under the principle of ''stare decisis'' ("to stand by thin ...
where it is convenient for conservative political aims. Minimalists also criticize traditional liberal judicial activism as overexpansive and as ignorant of
precedent Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases. Fundamental to common law legal systems, precedent operates under the principle of ''stare decisis'' ("to stand by thin ...
when it is convenient to liberal political aims.


See also

*
Judicial restraint Judicial restraint is a judicial interpretation that recommends favoring the ''status quo'' in judicial activities and is the opposite of judicial activism. Aspects of judicial restraint include the principle of '' stare decisis'' (that new de ...
*
Cass Sunstein Cass Robert Sunstein (born September 21, 1954) is an American legal scholar known for his work in U.S. constitutional law, administrative law, environmental law, and behavioral economics. He is also ''The New York Times'' best-selling author of ...


References


Further reading

* {{cite book , author=Sunstein, Cass R. , title=Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America , location=Cambridge, MA , publisher=Basic Books , year=2005 , isbn=0-465-08326-9 , url-access=registration , url=https://archive.org/details/radicalsinrobesw00suns Sunstein's book, despite its title, has been perceived as an attack on both judicial conservatives and liberal activists.. Constitutional law