Prof. Sunstein’s confusion begins with a distinction he has worked at length elsewhere, between “minimalist” and “fundamentalist” conservatives. The former “insist that social change should occur through the democratic process, not through the judiciary,” he says. They prefer narrow decisions, not earthquakes.
By contrast, “fundamentalist conservatives do not believe in small steps.” They want to reorient the “wildly wrong” constitutional law of the past 50 years “in major ways” through an active court that limits congressional power, protects property rights, and expands presidential power, among other things.
Alas, categorization like that is about as helpful as the more common distinction between judicial “activism” and “restraint.” Indeed, Prof. Sunstein labels Justice O’Connor a minimalist conservative. Yet where was she in two of the more celebrated decisions the court handed down last term? She voted to limit congressional power in the California medical marijuana case and to protect property rights in the New London eminent domain case. That makes her a “fundamentalist” conservative.
Prof. Sunstein’s categories do serve his political purpose, however, which is to brand “fundamentalist” conservatives by claiming, contrary to evidence, that “there is great overlap between their constitutional vision and the politics of the extreme right wing of the Republican Party.” He concludes, in fact, that “at this point in our history, the most serious danger lies in the rise of conservative judicial activism.”
Two responses are in order. First, his argument amounts to an invitation to look at anything but the Constitution. In fact, his recommended “minimalism” is a pose, designed to preserve constitutional deviations of earlier “fundamentalist” liberal courts.
Second, his implicit call for “social change” to take place through the democratic process, not through the judiciary, is disingenuous — for again, the status quo he wants to preserve was wholly a judicial invention. Moreover, that call presumes that social change must come about through one of those means — through government. The modern liberal, in short, seems incapable of contemplating change as taking place primarily through the private sector. That is, after all, what the Constitution contemplates.