Radicals in Robes - Softcover

According to legal scholar Cass Sunstein, it is not enough to label judges as "liberal" or "conservative" or any other ideological stripe; one must also take into account their approach to constitutional interpretation. In Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, he outlines four approaches that have long dominated constitutional debate--perfectionism, majoritarianism, minimalism, and fundamentalism--and argues for minimalism and against fundamentalism (perfectionism and majoritarianism are given less attention since they have largely fallen out of favor in recent decades). Minimalists believe in narrow, incremental decisions rather than broad rulings. They respect precedent, recognize the limited role of the judiciary, and "seek outcomes on which people with varying views can agree." Fundamentalists believe the Constitution must be interpreted according to "original understanding," or precisely what was meant at the time of ratification. "In the abstract, fundamentalism appears both principled and neutral. But too much of the time, fundamentalists offer an unmistakably partisan vision of the Constitution," he asserts. Though he acknowledges that fundamentalism can sometimes be reasonable, the risks of abuse are too great, leading him to conclude that the approach is "destructive and pernicious" because it leads to less freedom for Americans. In practice, for instance, it could ban the sale of contraceptives, invalidate most environmental regulations, allow discrimination on the basis of race and sex, allow states to establish official churches, and overturn even modest gun control laws.

Though they claim a devotion to history, Sunstein believes fundamentalists are "seeking to produce a federal judiciary that operates as an arm of the political branches." In making this point, Sunstein shows how "judicial activism" by extreme conservative judges has been on the rise since the Reagan administration, moving the Supreme Court hard to the right in the process. He discusses the implications of this shift on issues such as the right to privacy, marriage, affirmative action, national security, the separation of powers, gun control, and religion in public life, among others. In Radicals in Robes, Sunstein skillfully outlines complex constitutional issues in clear language, making this a useful and thought-provoking book for lay readers and legal experts alike. --Shawn Carkonen

Advance Praise for Radicals in Robes

"Radicals in Robes explains why it is important to prevent the right-wing takeover of the federal judiciary. Cass Sunstein embeds his argument within a more general theory of judicial 'minimalism' that would limit the further politicization of judicial appointments. It is an important argument, and he presents it well." -- Sanford Levinson, author of Wrestling with Diversity

"In an angry age too easily seduced by partisan aggressiveness and simple-minded slogans, Cass R. Sunstein, one of our country's finest legal scholars, argues for a constitutional law based on common sense, patience, modesty, and restraint. These are virtues we need now more than ever." -- Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School, author of The Laws of Change

"This book clarifies the stakes in current struggles over the role of courts in American democracy. For all those seeking a path between the extremes of old judicial liberalism and the new 'fundamentalist' counterrevolution, Cass R. Sunstein offers one here, and he does so with the energy, clarity, and scholarly commitment for which he has become so widely known." -- Richard Pildes, Sudler Family Professor of Constitutional Law, NYU School of Law