A Theory in Search of a Court, and Itself: Judicial Minimalism at the Supreme Court Bar

According to the prevailing wisdom in academic public law, constitutional theory is a field that seeks to articulate and evaluate abstract accounts of the nature of the United States Constitution. Theorists offer those accounts as guides to subsequent judicial construction of constitutional provisions. As typically conceived, therefore, constitutional theory tends to proceed analytically from the general to the particular; its animating idea is that correct decisions in constitutional cases presuppose theoretical commitments to the methodological principles that should guide constitutional interpretation and the substantive values such interpretation should advance. In its enthusiasm for abstraction, constitutional theory has, at times, generated accounts of judicial behavior that are removed from the realities of judicial practice. Indeed, it may not be an overstatement to suggest that a basic disconnect exists between the turn to theory in legal academia and the actual practice of constitutional adjudication. At the Supreme Court bar, for example, the Justices – and thus the appellate advocates who appear before them – appear more interested in grappling with the law and facts of the case at hand than they are eager to articulate or apply grand theories about the “fundamental nature” of the Constitution.