Seeking for Righteousness

The Personal Blog of Kaimi Wenger

Comments on Sunstein’s Op-Ed

Cass Sunstein’s New York Times Op-Ed has been intelligently critiqued at both Instapundit and Discriminations. There are some inconsistencies in Sunstein’s article, to be sure. His overall theme, however, has more merit then the critics seem to suggest.

For years conservatives railed against the Warren court for its activism. Conservative arguments could often be placed, broadly speaking, in one of two meta-categories: There were a number of commentators whose position was “The court is substantively wrong.” There were also a number of commentators who took the more procedural approach of “Activism is bad” — i.e., that judges should be more deferential to Congress. Judge Easterbrook’s “Statutes’ Domains” from 1983, an important piece in conservative statutory interpretation theory, is an example of the latter. (That’s 50 U.Chi.L.Rev. 533, for any who may be interested). The two strands — again, broadly speaking — could be called substantive versus procedural conservatism.

Sunstein’s point is that when conservatives become the majority, they are forced to choose between these two arguments. Either their judges invalidate legislation they don’t like — conservative in nature, but still “activist” — or their judges follow “judicial deference,” and in the process allow liberal legislation to stand.

The counter-argument that these judges are “just following the Constitution” (see Instapundit for example) is probably not a sufficient counter to charges of activism. After all, many decisions which conservatives love to call unrestrained activism, such as Roe v. Wade, are Constitutional cases. Douglas, Blackmun, and Brennan, widely characterized as liberal activist judges, were also “just following the Constitution” in their eyes.

The topic has previously been raised throughout law review articles and classes in law school, so Sunstein’s article is nothing new to people who follow law, but may be another example of his tendency towards interdisciplinary cross-pollination. Sunstein has been taking ideas on behavior that economists have known for years and injecting them into law review articles; similarly, this may be an attempt to take a topic which has been circulating in law schools and inject it into more general public discussion.

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November 10, 2002 - Posted by | Uncategorized

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