Minimalism (judicial)
Encyclopedia
Judicial minimalism refers to a philosophy in United States constitutional law
which promotes itself as a politically moderate viewpoint.
, it presents itself as a moderate stance, criticizes the more conservative
stance of originalism
as judicial activism
in disguise, since minimalists believe that a faithful application of originalist theory would result in a system of constitutional law where modern societal mores would be ignored, largely in favor of the now-antiquated ones held by the Founders
based on the assertion that the Founders' understanding of constitutional law would likely include ideas about gender equality
, racism
, etc. that modern society would find objectionable. Conservatives who subscribe to this viewpoint, minimalists say, are likely to ignore precedent
where it is convenient for conservative political aims. Minimalism also criticizes traditional liberal judicial activism as overexpansive and also ignorant of precedent
when it is convenient to liberal political aims.
. They argue that only very small interpretations away from precedent, narrowly-applied, and based on the general direction of society constitute true judicial restraint
rather than any originalist or strict constructionist viewpoint (in opposition to conservatives), while still allowing for a Living Constitution
(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
precedents rather than proclaim a lasting ban or legalization on 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
case NASA v. Nelson
, Justice Antonin Scalia
derided minimalism as a "never-say-never disposition [which] does damage for several reasons." Justice Samuel Alito
, 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."
United States constitutional law
United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.- Introduction :United States constitutional law defines the scope and application of the terms of the Constitution...
which promotes itself as a politically moderate viewpoint.
Summary and complaints against "judicial extremism"
Largely associated with Cass R. SunsteinCass Sunstein
Cass R. Sunstein is an American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics, who currently is the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration...
, it presents itself as a moderate stance, criticizes the more conservative
American conservatism
Conservatism in the United States has played an important role in American politics since the 1950s. Historian Gregory Schneider identifies several constants in American conservatism: respect for tradition, support of republicanism, preservation of "the rule of law and the Christian religion", and...
stance of originalism
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
as judicial activism
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
in disguise, since minimalists believe that a faithful application of originalist theory would result in a system of constitutional law where modern societal mores would be ignored, largely in favor of the now-antiquated ones held by the Founders
Founding Fathers of the United States
The Founding Fathers of the United States of America were political leaders and statesmen who participated in the American Revolution by signing the United States Declaration of Independence, taking part in the American Revolutionary War, establishing the United States Constitution, or by some...
based on the assertion that the Founders' understanding of constitutional law would likely include ideas about gender equality
Gender equality
Gender equality is the goal of the equality of the genders, stemming from a belief in the injustice of myriad forms of gender inequality.- Concept :...
, racism
Racism
Racism is the belief that inherent different traits in human racial groups justify discrimination. In the modern English language, the term "racism" is used predominantly as a pejorative epithet. It is applied especially to the practice or advocacy of racial discrimination of a pernicious nature...
, etc. that modern society would find objectionable. Conservatives who subscribe to this viewpoint, minimalists say, are likely to ignore precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
where it is convenient for conservative political aims. Minimalism also criticizes traditional liberal judicial activism as overexpansive and also ignorant of precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
when it is convenient to liberal political aims.
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 decisisStare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
. 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
Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional...
rather than any originalist or strict constructionist viewpoint (in opposition to conservatives), while still allowing for a Living Constitution
Living Constitution
The Living Constitution is a concept in America, also referred to as loose constructionism, constitutional interpretation which claims that the Constitution has a dynamic meaning or that it has the properties of a human in the sense that it changes...
(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
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
precedents rather than proclaim a lasting ban or legalization on abortion via Constitutional rulings.
Justice Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
is often hailed by minimalists as their ideal Justice.
In a concurring opinion in the 2011 Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case NASA v. Nelson
NASA v. Nelson
NASA v. Nelson, No. 09-530 , was a recent case in which the Supreme Court of the United States held that NASA's background checks of contract employees did not violate any constitutional privacy right.-Background:In 2004, President George W...
, Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
derided minimalism as a "never-say-never disposition [which] does damage for several reasons." Justice Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
, 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."