Was Ann Coulter Right? Some Realism About "Minimalism"‪.‬

INTRODUCTION Ever since the Warren Court rewrote much of the Bill of Rights and the Fourteenth Amendment, there has been a debate within legal academia about the legitimacy of this judicial law making. (1) Very little popular attention was paid, at least in the last several decades, to this problem. More recently, however, the issue of the legitimacy of judicial law making has begun to enter the realm of partisan popular debate. This is due to the fact that Republicans controlled the White House for six years and a majority in the Senate for almost all of that time, that they have announced, as it were, a program of picking judges committed to adjudication rather than legislation, and finally, that the Democrats have, just as vigorously, resisted Republican efforts. Cass Sunstein, a professor at the University of Chicago Law School, (2) and now a visiting professor at Harvard Law School, (3) has written a provocative book purporting to be a popular, yet scholarly critique of the sort of judges President George W. Bush has announced that he would like to appoint. Is Sunstein's effort an objective undertaking, or is it partisan politics with a thin academic veneer? If Sunstein's work (and that of others on the Left in the academy) is something more (or less) than it appears to be, can the work of an unabashedly partisan popular commentator help us to figure out what is happening in constitutional jurisprudence? In what follows, I will first review Ann Coulter's critique of "liberalism," and then I will proceed to suggest that Coulter's criticism might well be applied to Sunstein's approach to constitutional interpretation, insofar as it seems more politically partisan than objectively valid. I will conclude by suggesting that the "radicals" whom Sunstein excoriates are actually those most faithful to our constitutional tradition.