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Minimalism and the Roberts Court

[ 0 ] July 3, 2009 |

Responding to Jack Balkin on the Court’s “minimalist turn,” Johnathan Adler argues:

It’s an interesting post, but I reject Balkin’s premise. There’s nothing “sudden” about the Roberts Court’s minimalism. Rather, a conservative minimalism has been the defining characteristic of the Roberts Court and, as a general matter, of the two newest justices. In this regard, NAMUNDO and Ricci, are of a piece with Wisconsin Right to Life, Ayotte, Gonzales v. Carhart, NRDC v. Winter, and many other cases in which the Court either adopted a very narrow, incremental holding or avoided reaching an underlying constitutional question.

I think, however, that the claim that nothing has changed is missing something important. I attempt to defend the distinction in detail in this paper for anyone who’s interested, but I think it’s crucial to distinguish between formal minimalism and substantive minimalism. I agree with Adler that Roberts and Alito have always been formal minimalists, declining to explicitly overrule precedents or make broad pronouncements. But prior to this term, this minimalism has often been strictly formal — several of the cases Adler cites were not substantively minimalist. Carhart II, in which they declined to formally overrule Carhart I although they were upholding a statute virtually identical to the one the Court had previously struck down, is the most obvious (and farcical) example. As for Wisconsin Right to Life, I can’t resist once again quoting from Scalia’s footnote 7:

The claim that §203 on its face does not reach a substantial amount of speech protected under the principal opinion’s test—and that the test is therefore compatible with McConnell—seems to me indefensible. Indeed, the principal opinion’s attempt at distinguishing McConnell is unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices of this Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. This faux judicial restraint is judicial obfuscation.

How the Court characterizes the relationship between a holding and its precedents is much less important than whether a holding actually is consistent with precedent. In many cases, Alito and Roberts’ formal minimalism has concealed a substantive disregard for the relevant precedent. In this sense, the VRA case really was different. My guess, though, is that it’s an outlier, an unusual case where a conservative substantive outcome and formal minimalism were essentially incompatible. In the future, I would expect the formal minimalism of Roberts and Alito to continue to mask a substantive conservatism that differs from Thomas and Scalia’s primarily in that it’s even more consistent.

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