It’s really very interesting and ironic that no less a progressive than Harvard law professor Cass Sunstein now finds solace in the fact that, with the death of Justice Antonin Scalia, which has basically produced a 4-4 Supreme Court on any seriously contentious issue, the Court might in the interim get used to being less activist and more minimalist in its rulings. How convenient for him and his fellow travelers on the left, now that about 50 years of liberal activist jurisprudence is on the books as so-called “settled law”. In a recent op/ed, he even quotes Chief Justice John Roberts in what he calls “the cardinal principle of judicial restraint–if it is not necessary to decide more, it is necessary not to decide more”. And, according to Sunstein, that principle contains two ideas: that decisions should be narrow rather than wide and that they should be shallow rather than deep, and he adds that such rulings reflect one virtue above all: humility. Another benefit he highlights as almost equally important is that minimalist rulings have the advantage of keeping major issues open for debate.
Really? When has the left ever expressed an interest in either one of these virtues? Where is the humility in the numerous decisions that have “discovered” rights that are nowhere expressed or implied in the Constitution and where is the deference to the democratic process in a Court whose progressive wing has repeatedly removed momentous national issues from deliberation with a broad “one size fits all” stroke. Both lists are long.
So now we are supposed to welcome a minimalist Court? If that means not reversing a number of atrocious decisions by what has too often been an activist and imperial Court, no thanks.
