Bench Memos

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Sunstein on O’Connor


Cass Sunstein has written a brief piece on Justice O’Connor and conservatives. He deserves credit for somehow managing not to use the phrase “judicial minimalism”—if I were him, I’d have been unable to resist—but the concept is lurking in there. I think judicial minimalism is arrogance cloaked as humility, to coin a phrase. But since it’s not his focus in the article, it won’t be mine here either.

Sunstein’s aim is to divide conservatives into two camps: “Frankfurterians [who] despise Roe v. Wade, but . . . are also reluctant to use the Constitution to strike down affirmative action programs, environmental regulation, or campaign finance reform laws,” and “Thomistic conservatives [who] believe that the Supreme Court should enforce the ‘original understanding’ of the Constitution, and that radical steps are necessary to restore the Lost Constitution.” The Thomists—I think he’s referring to Clarence Thomas, not Aquinas—”are perfectly willing to strike down affirmative action programs, gun control legislation, environmental regulations, restrictions on commercial advertising, campaign finance laws, and much more.” Guess which he prefers.

If I had to choose between these two camps, I suppose I’d be a Frankfurterian, since I don’t want the courts to strike down environmental regulation, campaign-finance laws, gun regulations, restrictions on commercial advertising, etc. But I don’t think it’s necessary to choose between the camps: I think my views are perfectly compatible with originalism.

Anyway, his typology breaks down as soon as he attempts to apply it to O’Connor. She is allegedly a Frankfurterian who is now reviled by conservatives because they have become Thomists. But Sunstein himself notes that “she voted to strike down lots of affirmative action programs.” She obviously did not “despise Roe v. Wade.” She voted with Thomas on the eminent-domain and medical-marijuana cases. Nor does Sunstein make the case for O’Connor’s alleged commitment to “stability in the law.” Wouldn’t that commitment have dictated a reversal of her vote in Lawrence? And a more predictably rule-bound jurisprudence generally?


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