Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America Book

I received Cass R. Sunstein's Radicals in Robes after Harriett Miers was nominated for the U.S. Supreme Court. I completed it less than 48 hours before "Miers asked Bush" to withdraw her nomination after having been skewered by the right wing of Bush's base. Though Sunstein wasn't writing specifically about Miers or the nomination process, his analysis is pertinent to where we go from here.[return][return]Sunstein, who teaches at the University of Chicago Law School, attempts to elevate the discourse over federal judges beyond litmus tests and paper trails to analysis of theories of constitutional interpretation. He identifies four major theories of constitutional interpretation and analyzes many of the today's hot button issues through their prisms.[return][return]The four approaches very briefly summarized are: (1) fundamentalism, which believes the proper approach to constitutional law is discerning and applying the intent behind the Constitution when it was ratified in 1789, the intent behind the Bill of Rights when it was ratified in 1791 or when the Fourteenth Amendment (through which much of the Bill of Rights has been applied to the states) was adopted in 1868; (2) perfectionism, whose adherents believe the Constitution should be interpreted in broad terms so that its ideals are fully realized and the law is made "better"; (3) majoritarianism, an approach little used today that believes majority rule should impact constitutional interpretation and, thus, will defer to decisions made by the executive and legislative branches as long as they do not clearly violate the Constitution; and, (4) minimalism, which believes judges and courts should try to avoid the deep core questions, such as the role of religion in society, and render rulings on narrow grounds tailored to the precise issues and facts presented by any case rather than making broad pronouncements.[return][return]Sunstein excoriates fundamentalism and argues it is a threat to established precedent and American society as a whole. While he is less critical of perfectionism, he also sees it as having inherent failings. Sunstein advocates minimalism, moving constitutional law by, to use his terms, nudges rather than earthquakes. He believes the real Radicals in Robes are fundamentalist judges appointed to the bench by the Reagan, Bush I and Bush II administrations. He contends these fundamentalists tend to be wedded to a right wing agenda of, among other things, overturning any concept of a constitutional right to privacy, abolishing affirmative action, invalidating any gun control laws, and reducing or removing the "wall" between church and state judicially recognized under the Establishment Clause. The most notable proponents currently are Supreme Court Justices Antonin Scalia and Clarence Thomas.[return][return]Balance of review at