Sunstein: the virtue of judicial mimimalism
By Cass Sunstein (Harvard Law)
My topic is the Supreme Court’s dilemma. I am going to offer one understanding of how it might try to manage the current situation, and more speculatively, one understanding of how some member or members of the Court might actually be trying to manage that situation.
For orientation, let us indulge the following assumptions (I think they are correct; if you don’t, please indulge them):
The executive branch, right now, is engaging in an unusually large number of actions that raise serious legal questions.
Some people think, not unreasonably, that there is a risk that the executive branch may not follow court orders.
A large percentage of the country (40 percent? 50 percent? more?) would be on the side of the executive branch, in the event of a conflict between the Supreme Court and the President. (The percentage would depend on the substance of the conflict, of course.)
Taken together, the foregoing points put the Court in an unusually difficult position, and things might get worse over time.
How should the Court respond? Some people think that over the last months, the Court has been “capitulating” to the executive branch. In their view, the Court has been cowardly.
Other people think that this is in some sense Trump’s Court, and some of the justices, or even a majority, are “on his side.” I don’t think that is close to an adequate account.
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