Judicial minimalism

Judicial minimalism refers to a philosophy in United States constitutional law that promotes itself as a politically moderate viewpoint.

The view of judicial minimalism

Judicial minimalists offer a type of constitutional interpretation characterized by case-specific interpretations of the law. Judges who believe in judicial minimalism believe that stable constitutional law is in everybody's interest and place great importance on the concept of precedent of previous cases and stare decisis. Judges who follow the minimalist viewpoint argue that only very small interpretations away from precedent along with narrowly-applied interpretations are based on the general direction of what society could constitute true judicial restraint rather than any originalist or strict constructionist viewpoint while still allowing for a Living Constitution to take place. Experts view judicial minimalists as those who are anti-conservative, yet also anti-liberal in which their stance is well-expressed. Depending on a judge's particular preferences, a minimalist on the court would be likely to slowly bolster or chip away at key precedents rather than proclaim a lasting ban or legalization of a controversial subject on rulings of the Constitution.

Cass Suntein, a proponent of judicial minimalism, described the philosophy in the following way:

“	A minimalist court settles the case before it, but it leaves many things undecided. It is alert to the existence of reasonable disagreement in a heterogeneous society. It knows that there is much that it does not know; it is intensely aware of its own limitations. It seeks to decide cases on narrow grounds. It avoids clear rules and final resolutions. Alert to the problem of unanticipated consequences, it sees itself as part of a system of democratic deliberation; it attempts to promote the democratic ideals of participation, deliberation, and responsiveness. It allows continued space for democratic reflection from Congress and the states. It wants to accommodate new judgments about facts and values. To the extent that it can, it seeks to provide rulings that can attract support from people with diverse theoretical commitments.	”
—Cass Sunstein

Criticism

In an article for the New York University Journal of Law & Liberty, Tara Smith defined judicial minimalism as "the increasingly popular view that judges decide cases properly to the extent that they minimize their own imprint on the law by meticulously assessing 'one case at a time,' ruling on narrow and shallow grounds, eschewing broader theories, and altering entrenched legal practices only incrementally." She points out that minimalism is unusual because it finds support on both sides of the political spectrum. Its broad appeal, Smith argues, is actually because the philosophy "lacks distinctive content and has no stable identity," and fails to represent a concrete method for making decisions.

Notable minmalists

Justices Sandra Day O'Connor and Anthony M. Kennedy were often hailed by minimalists as ideal justices.

See also

• Philosophy of law
• Judicial philosophy