Judicial minimalism refers to a philosophy in
United States constitutional lawUnited 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 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...
, who originally defined the philosophy and remains its primary advocate,
Judicial Minimalism, presenting itself as a moderate stance, criticizes the more
conservativeConservatism in the United States is a major American political philosophy. In contemporary American politics, it is often associated with the Republican Party...
stance of
originalismIn the context of United States constitutional interpretation, originalism is a family of theories central to all of which is the proposition that the Constitution has a fixed and knowable meaning, which was established at the time of its drafting. A neologism, "originalism" is a formalist theory...
as
judicial activismJudicial activism is a critical term used to describe judicial rulings that impose a personal biased interpretation by a given court of what a law means as opposed to what a neutral, unbiased observer would naturally interpret a law to mean....
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 FoundersThe Founding Fathers of the United States were the political leaders who signed the Declaration of Independence in 1776 or otherwise took part in the American Revolution in winning American independence from Great Britain, or who participated in framing and adopting the United States Constitution...
based on the assertion that the Founders' understanding of Constitutional Law would likely include ideas about
gender equalityGender equality is the goal of the equality of the genders or the sexes, stemming from a belief in the injustice of myriad forms of gender inequality....
,
racismRacism is the belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race. In the case of institutional racism, certain racial groups may be denied rights or benefits, or get preferential treatment...
, etc. that modern society would find objectionable. Conservatives who subscribe to this viewpoint, minimalists say, are likely to ignore
precedentIn common law legal systems, a precedent or authority is a legal case establishing a principle or rule that a court or other judicial body utilizes when deciding subsequent cases with similar issues or facts.-Binding precedent:...
where it is convenient for conservative political aims. Minimalism also criticizes traditional liberal judicial activism as overexpansive and also ignorant of
precedentIn common law legal systems, a precedent or authority is a legal case establishing a principle or rule that a court or other judicial body utilizes when deciding subsequent cases with similar issues or facts.-Binding precedent:...
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 is the legal principle by which judges are obliged to obey the precedents established by prior decisions.In the United States, which uses a common law system in its federal courts and most of its state courts, the Ninth...
. They argue that only very small interpretations away from precedent, narrowly-applied, and based on the general direction of society constitute true
judicial restraintJudicial 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 ConstitutionThe Living Constitution is a concept in American constitutional interpretation which claims that the Constitution has a dynamic meaning. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases.While the arguments for...
(albeit one with a much slower adaptation than many liberals would like). Their anti-conservative, yet also anti-liberal, stance is well-expressed in the concurrent belief of many minimalists that
Roe v. WadeRoe v. Wade, , a landmark case decided by the United States Supreme Court on the issue of abortion, is one of the most controversial and politically significant cases in U.S. Supreme Court history.In Roe v...
was wrongly decided by its overly liberal court but also that modern conservatives who either sit on or influence the
Supreme Court of the United StatesThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
are wrong to try to overrule that case at one fell stroke, its effect on the law having become a stable precedent. Depending on the minimalist's particular preferences, a minimalist on the court would be likely to either very slowly bolster or chip away at
abortionAn abortion is the termination of a pregnancy by the removal or expulsion from the uterus of a fetus or embryo. An abortion can occur spontaneously due to complications during pregnancy or can be induced, in humans and other species...
precedents rather than proclaim a lasting ban or legalization on abortion via Constitutional rulings.
Justice Sandra Day O'ConnorSandra Day O'Connor is an American jurist and 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...
is often hailed by minimalists as their ideal Justice.