The Democracy-Forcing Constitution

During my freshman year in college, I was told not to judge a book by its cover. The book in question – Lolita; the cover suggested something quite salacious. My professor explained that a soldier, who had purchased Lolita to work out some of the kinks of military life, found himself tossing the book out, proclaiming in disgust “Literature!” Well, I cannot claim precisely the same reaction to Cass Sunstein’s One Case at a Time (my expectations were lower than the soldier’s). Nevertheless, for those expecting a lefty defense of judicial restraint, One Case at a Time is not your book. Rather, Sunstein very much wants the Supreme Court to play an active role in abortion, affirmative action, the right to die, and much more. But Sunstein’s brand of activism is minimalist. Rather than look to the judiciary to settle these issues once and for all, Sunstein sees the Court as a “democracy forcing” facilitator, encouraging elected government and the people to engage in constructive constitutional dialogues. As rallying cries go, Sunstein’s plea for judicial minimalism has broad appeal. After all, social conservatives still complain about judge-made rights and the left, smarting from several Rehnquist Court defeats, increasingly sees elected government as more apt to embrace their agenda than the judiciary. With both sides ready to jettison judicial activism, judicial minimalism seems an idea whose time has come.