Constitutional Personae
Heroes, Soldiers, Minimalists, and Mutes
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- $17.99
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- $17.99
Publisher Description
Since America's founding, the U.S. Supreme Court had issued a vast number of decisions on a staggeringly wide variety of subjects. And hundreds of judges have occupied the bench. Yet as Cass R. Sunstein, the eminent legal scholar and bestselling co-author of Nudge, points out, almost every one of the Justices fits into a very small number of types regardless of ideology: the hero, the soldier, the minimalist, and the mute.
Heroes are willing to invoke the Constitution to invalidate state laws, federal legislation, and prior Court decisions. They loudly embrace first principles and are prone to flair, employing dramatic language to fundamentally reshape the law. Soldiers, on the other hand, are skeptical of judicial power, and typically defer to decisions made by the political branches. Minimalists favor small steps and only incremental change. They worry that bold reversals of long-established traditions may be counterproductive, producing a backlash that only leads to another reversal. Mutes would rather say nothing at all about the big constitutional issues, and instead tend to decide cases on narrow grounds or keep controversial cases out of the Court altogether by denying standing.
As Sunstein shows, many of the most important constitutional debates are in fact contests between the four Personae. Whether the issue involves slavery, gender equality, same-sex marriage, executive power, surveillance, or freedom of speech, debates have turned on choices made among the four Personae--choices that derive as much from psychology as constitutional theory. Sunstein himself defends a form of minimalism, arguing that it is the best approach in a self-governing society of free people. More broadly, he casts a genuinely novel light on longstanding disputes over the proper way to interpret the constitution, demonstrating that behind virtually every decision and beneath all of the abstract theory lurk the four Personae. By emphasizing the centrality of character types, Sunstein forces us to rethink everything we know about how the Supreme Court works.
PUBLISHERS WEEKLY
Sunstein (Nudge), a law professor and former head of the White House Office of Information and Regulatory Affairs in the Obama administration, has crafted a valuable study of the different approaches that Supreme Court justices take in deciding cases. As the title indicates, he believes there are four such categories: heroes, who use their decisions to effect major changes; soldiers, who follow precedent and historical practice; minimalists, who make incremental changes; and mutes, who avoid addressing major issues. The categories are not rigid; some justices will be minimalists on some cases and soldiers on others, for example. But beyond this useful taxonomy which is independent of political slant, so the justices responsible for the majority decisions in Bush v. Gore and Brown v. Board of Education are both filed as heroic Sunstein makes a compelling case as to which persona is most apt for the immense power the Supreme Court wields, namely minimalism, which is informed by the belief that "human beings, and judges in particular have a limited stock of reason," dictating a sense of humility. Given the significance of recent Supreme Court decisions on such issues as campaign finance, health care coverage, and marriage equality, Sunstein has performed a public service by enabling a better comprehension of how these judgments are reached.
