Radicals in Robes


By Cass R. Sunstein

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Most people think that the Supreme Court has a rough balance between left and right. This is a myth; in fact the justices once considered right-wing have now taken the mantle of the Court’s moderates, and the liberal element has all but disappeared. Most people also think that judicial activism is solely a liberal movement. This is also a myth; since William Rehnquist was confirmed as Chief Justice in 1986, the Supreme Court has engaged in an unprecedented record of judicial activism. These two factors are feeding a movement to restore what many conservatives call “The Constitution in Exile,” by which they mean the Constitution as it existed before the Roosevelt administration. Radicals in Robes explains what the restoration of this constitutional vision would mean. It would mean the end of the FCC, the SEC, the EPA, and every other federal agency that enacts regulations that have the force of law. It would mean that the clause of the First Amendment that says that Congress may make no law “respecting an establishment of religion” would be turned on its head. Marriage laws and many other familiar areas of modern life are all in the sights of this conservative movement. Radicals in Robes takes judicial philosophy out of the law schools and shows what it means when it intersects partisan politics. It pulls away the veil of rhetoric from a dangerous and radical right-wing movement and issues a strong and passionate warning about what conservatives really intend. One of the most respected legal theorists in the country, Cass R. Sunstein here issues a warning of compelling concern to us all.


Praise for Radicals in Robes

“Sunstein pulls no punches.”

Chicago Daily Law Bulletin

“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

“Not entirely the partisan screed that you’d expect . . . enlightening and . . . fascinating.”

Kirkus Reviews

“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.”

Rick Pildes, Sudler Family Professor of
Constitutional Law, NYU School of Law

“In his new book, Radicals in Robes, Cass R. Sunstein, of the University of Chicago, offers a helpful taxonomy for identifying the various strands of constitutional philosophy in the court and the country today.”

The Chronicle of Higher Education

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

“All in all . . . this manifesto, directed against all sorts of extremists, is a fine one.”

St. Louis Post-Dispatch

“One of the nation’s leading scholars of constitutional law offers an astute and opinionated overview of what matters in today’s controversies about federal judges. Your blood pressure may go up as you read this book, but afterwards you’ll understand more about what’s at stake.”

Mark Tushnet, author of A Court Divided

“This timely book builds a convincing case that extreme right-wing courts are wrong for America. Cass Sunstein, a professor at the University of Chicago Law School, pulls away the veil of rhetoric from dangerous and radical movements and issues a strong and passionate warning about what some extremists really intend for our judicial system.”

Tucson Citizen



Laws of Fear: Beyond the Precautionary Principle, 2005

The Second Bill of Rights, 2004

Animal Rights (editor, with Martha Nussbaum), 2004

Why Societies Need Dissent, 2003

Risk and Reason, 2002

The Cost-Benefit State, 2002

Designing Democracy, 2001

The Vote (co-editor, with Richard A. Epstein), 2001

Punitive Damages (with Reid Hastie, John Payne, David Schkade, and W. Kip Viscusi), 2002

Republic.com, 2001

Behavioral Law and Economics (editor), 2000

One Case at a Time, 1999

Administrative Law and Regulatory Policy (with Stephen Breyer, Richard B. Stewart, and Matthew Spitzer), 1999

The Cost of Rights (with Stephen Holmes), 1999

Clones and Clones (co-editor, with Martha Nussbaum), 1998

Legal Reasoning and Political Conflict, 1996

Free Markets and Social Justice, 1997

Democracy and the Problem of Free Speech, 1993

The Partial Constitution, 1993

After the Rights Revolution, 1990

The Bill of Rights and the Modern State (co-editor with Geoffey R. Stone and Richard A. Epstein), 1992


Why Extreme Right-Wing Courts Are Wrong for America

Cass R. Sunstein

For David A. Strauss

The spirit of liberty is that spirit which is
not too sure that it is right.

Learned Hand

The dead have no rights.

Thomas Jefferson


EVERY DAY OF EVERY YEAR, we Americans are freer because of our Constitution. If we’re allowed to say what we like, worship as we choose, proceed without fear of the police, and even govern ourselves, we owe a large debt to our founding document. But our freedom is more fragile than it appears. The meaning of the Constitution is often disputed, and the disputes are often settled by the Supreme Court of the United States. The rights of Americans depend on what the Court says, and the Court doesn’t always say what it said before.

It is customary to describe battles over the Constitution as pitting “liberals” against “conservatives,” but this description is hopelessly inadequate. While ideology matters, different judges follow radically different approaches to constitutional law, and these approaches go well beyond ideology. My first goal in this book is to describe the four approaches that have long dominated constitutional debates, and to show how these approaches apply to the constitutional questions that trouble us today.

Two of them are minority positions, claiming distinguished historical pedigrees but few supporters on the current federal courts. I will argue for a third, which continues to have strong representation on the judiciary and in the nation as a whole. The fourth, which is ascendant, threatens both our democracy and our rights.

The first position is favored by many American liberals. We may call it perfectionism. Perfectionists want to make the Constitution the best that it can be. They follow the document’s text, but they are entirely willing to understand that text in a way that reflects their own deepest beliefs about freedom of speech, equal protection of the laws, the power of the President, and other fundamental questions. Perfectionism played a major role in the liberal decisions of the Supreme Court under Chief Justice Earl Warren—the court that, among many other things, banned racial segregation in America; required a rule of one person, one vote; prohibited compulsory school prayer; and provided broad protection to political dissent. Many American liberals are willing to ask the Supreme Court to recognize or create new rights of many different kinds. When liberal perfectionists are committed, in principle, to a right, they often want the Supreme Court to say that that right is part of the Constitution.

The second position is majoritarianism. Majoritarians want to reduce the role of the Supreme Court in American government by allowing the democratic process to work its will. Unless the Constitution has been plainly violated, majoritarians believe that the courts should defer to the judgments of elected representatives. This commitment to bipartisan restraint would both permit affirmative action programs and allow states to forbid same-sex sodomy. Oliver Wendell Holmes, perhaps the greatest figure in the history of American law, was a majoritarian, and majoritarianism has recently attracted significant support among lawyers and law professors. Remarkably, however, it is hard to find a consistent majoritarian on today’s Supreme Court.

The third position is minimalism. Minimalists are skeptical about general theories of interpretation; they want to proceed one step at a time. They are willing to nudge the law in one or another direction, but they refuse to promote a broad agenda, and they are skeptical of “movement judges” of any kind. They insist that the Constitution is not frozen in the past. But they are nervous about the exercise of judicial power, and they disagree with those who want the Supreme Court to elaborate new rights and liberties lacking a clear foundation in our traditions and practices. Minimalists may be either conservative or liberal. Their distinguishing feature is that they believe in narrow, incremental decisions, not broad rulings that the nation may later have cause to regret. Justice Felix Frankfurter was a distinguished minimalist. In recent years, Justice Sandra Day O’Connor has been the Court’s leading minimalist, and I argue for minimalism in this book.

The fourth position is fundamentalism. Fundamentalists believe that the Constitution must be interpreted according to the “original understanding.” In their view, the founding document must be interpreted to mean exactly what it meant at the time it was ratified. If the Constitution did not originally ban the federal government from discriminating on the basis of race, then the federal government is permitted to discriminate on that basis. If the Constitution did not originally permit Congress to forbid child labor, then Congress cannot forbid child labor. If the Constitution did not originally give broad protection to political dissent, then courts cannot give broad protection to political dissent.

My second goal in this book is to explain what is wrong with the fundamentalist position.

As a constitutional creed, fundamentalism bears an obvious resemblance to religious fundamentalism. Religious fundamentalism usually represents an effort to restore the literal meaning of a sacred text. For fundamentalists, it is illegitimate to understand the words of those texts in a way that departs from the original meaning or that allows changes over time. “Strict construction” of the Constitution finds a parallel in literal interpretation of the Koran or the Bible. Some fundamentalists seem to approach the Constitution as if it were inspired directly by God. But since my topic is law, not religion, I do not mean to say anything about religious fundamentalism. It is in constitutional law that fundamentalism can be shown to be destructive and pernicious. Fundamentalism would make Americans much less free than they now are. It would constrict the right to free speech. It would eliminate the right of privacy. It might well allow states to establish official religions. It would do much more.

Fundamentalists often assert that theirs is the only legitimate approach to the Constitution. This is arrogant and wrong. Fundamentalists like to accuse their critics of bad faith. But some prominent fundamentalists have not hesitated to betray their commitment to the original understanding when the historical evidence points to results they dislike. Their willingness to do so suggests that some of the time, they are speaking for a partisan ideology rather than for law.

In extreme cases, the role of ideology is transparent—as in the disgraceful attack on an independent judiciary during the 2005 effort to ask federal judges to reinsert the feeding tube of Terri Schiavo, a brain-damaged woman in Florida. We live in an era in which some prominent politicians are demanding that the courts interpret the Constitution as if it conformed to positions of Republican party leaders—and threatening federal judges with reprisal if they refuse to do exactly as politicians want.

Their efforts should be rejected. My plea, in the end, is for minimalism—an approach to the Constitution that refuses to freeze the document in the eighteenth century, but that firmly recognizes the limited role of the federal judiciary and makes a large space for democratic self-government.

It is not at all pleasant to challenge, as wrong, dangerous, radical, and occasionally hypocritical, the many people of honor and good faith who have come to embrace fundamentalism. Fundamentalists are right to seek to cabin judicial power, and their democratic commitments are a good starting point for constitutional law. But I hope to show that the most appealing goals of fundamentalism can be accomplished in much better ways—and that many of fundamentalism’s goals are not appealing at all.


The Constitution in Exile

It is some time in the future. You are reading a weekly magazine, which explores how the Constitution has recently changed as a result of decisions of the Supreme Court.

  • States can ban the purchase and sale of contraceptives. The Court has ruled that the Constitution contains no right of privacy. Having overturned Roe v. Wade and allowed states to criminalize abortions, the Court now concludes that the Constitution does not protect any right to sexual or reproductive freedom. In some states, doctors are subject to criminal punishment for performing abortions. In other states, those who use contraceptives or engage in certain heterosexual and homosexual acts are subject to fines or jail sentences.
  • Key provisions of the Clean Air Act, the Federal Communications Act, and the Occupational Safety and Health Act are unconstitutional. Using a long-dead idea from the early twentieth century, the Supreme Court has ruled that Congress must narrowly confine the power of regulators. Many regulations, controlling air pollution, safety at work, and sexually explicit material on the airwaves, are invalid.
  • The Federal Government can discriminate on the basis of race and sex. Employment discrimination in federal agencies, IRS audits targeted to specific groups, and sex discrimination in the military are all perfectly legitimate. Free to discriminate on the basis of race, the Department of Justice has eagerly embraced “racial profiling” in its continuing war on terror.
  • States can establish official churches. The Establishment Clause of the First Amendment, which everybody thought prevented state-sanctioned churches, is now read to prohibit Congress from interfering with states’ efforts to aid religion or even to create official religions. A large chunk of the Utah state budget now supports the Mormon Church, its schools, and its missionary programs.
  • The President has broad power to detain suspected terrorists and those who are alleged to have assisted them. Because of the threat of terrorism, the Court has held that as Commander in Chief of the Armed Forces, the President can detain American citizens who are suspected of assisting terrorists.
  • Important provisions of environmental laws, including the Endangered Species Act and the Clean Water Act, are beyond national power; some of the Civil Right Acts may be next. Having struck down the Violence Against Women Act in 2000, the Court has invalidated provisions of key laws protecting the environment. It has signaled that it may rethink its decisions upholding various civil rights laws, including the Civil Rights Act of 1964, which forbids employment discrimination.
  • Even modest gun control laws are invalid. For the first time in the nation’s history, the Court has ruled that the Second Amendment forbids both the national and state governments from imposing restrictions on individual gun ownership. The Court has struck down the most aggressive restrictions; it has also indicated that it is prepared to invalidate even the most moderate limitations on gun ownership.

Do these changes seem radical? They are. But all of them have been urged by a new group of constitutional revisionists, on or off the federal bench; and these revisionists are having a growing influence on the development of the law.

Back to the Past

A few years ago, I found myself in a large audience at the University of Chicago Law School, preparing to hear a speech by Douglas H. Ginsburg, Chief Judge of the influential court of appeals in Washington, D.C. Judge Ginsburg is a graduate of the University of Chicago Law School, my home institution. I like and admire him. He’s also an exceptionally able judge, unfailingly fairminded, and a generous and kind person to boot. On the bench, he’s neither an ideologue nor an extremist. But on this day, Judge Ginsburg spoke in strong terms.1

Ginsburg contended that the real American Constitution has not been faithfully interpreted, and it is time to explore previous understandings. The real Constitution, Ginsburg argued, was abandoned in the 1930s, when the Supreme Court capitulated to Franklin Delano Roosevelt and his New Deal. The Constitution was properly read in 1932, when the national government had sharply limited power and the system of constitutional rights was radically different from what it is today.

Ginsburg began by emphasizing that “ours is a written Constitution.” He claimed that this observation is controversial in only one place: “the most elite law schools.” In his view, the fact that the Constitution is written has major implications. If judges are to be faithful to the written Constitution, they must try “to illuminate the meaning of the text as the Framers understood it.” (Remember that claim; I will spend a good deal of time on it.) Fortunately, judges were faithful to the real Constitution for most of the nation’s history—from the founding through the first third of the twentieth century. But sometime in the 1930s, “the wheels began to come off.” With the Great Depression and the determination of the Roosevelt Administration, the Supreme Court abandoned its commitment to the Constitution as written.

How did this happen? Judge Ginsburg’s first example involved what may well be the most important power Congress has: the power to “regulate commerce . . . among the several states.” In the twentieth century, the Commerce Clause has provided Congress with the power to protect civil rights, to combat crime, and to do much more. But Judge Ginsburg referred, with approval, to the old idea that under the Constitution, Congress lacked the power to ban child labor. He made his strongest complaint about the Supreme Court’s decision, in 1937, to uphold the National Labor Relations Act, which protects the rights of Americans to organize and to join labor unions. In upholding the Act, the Court said that when labormanagement strife occurs, interstate commerce is affected; a strike in Pennsylvania often has a big impact elsewhere. Judge Ginsburg objects that this is “loose reasoning” and “a stark break from the Court’s precedent.”

His complaint goes much deeper. The Court’s acceptance of the National Labor Relations Act is not merely “extreme” but also “illustrative.” Ginsburg notes that the Supreme Court has upheld a key provision of the most important environmental law, the Clean Air Act, which, in his apparent view, violates the separation of powers by granting too much discretion to the Environmental Protection Agency. He thinks that with the rise of the modern regulatory state, the “structural constraints in the written Constitution have been disregarded.”

This is a strong charge, but it is just the tip of the iceberg. Since the 1930s, the Court has “blinked away” crucial provisions of the Bill of Rights. Of these, Judge Ginsburg singles out the Constitution’s Takings Clause, which says that government may take private property only for public use and upon the payment of “just compensation.” Judge Ginsburg objects that the Takings Clause has been read to provide “no protection against a regulation that deprives” people of most of the economic value of their property. Properly read, Ginsburg argues, the Takings Clause provides far more protection to property than the Supreme Court has been willing to give.

In decisions involving property, the Court has “blinked away” individual rights. At other times, it has created new rights “of its own devising,” acting as a “council of revision with a self-determined mandate.” What does Judge Ginsburg have in mind? His chief objection is to the right of privacy. Evidently he rejects Roe v. Wade and believes that no constitutional right to privacy protects the right to choose abortion. But he goes much further than that. His real objection is to the Court’s reasoning in its 1965 decision in Griswold v. Connecticut, in which it struck down a law forbidding married people to use contraceptives. A judge “devoted to the Constitution as written might conclude that the document says nothing about the privacy of” married couples.

The Griswold decision, he says, is “not an aberration.” It is matched by recent decisions holding that the Constitution imposes limits on capital punishment, such as the 2002 decision striking down a death sentence imposed on a mentally retarded defendant. Here, too, the Court created rights out of whole cloth, defying the actual Constitution.


On Sale
Dec 5, 2006
Page Count
320 pages
Basic Books

Cass R. Sunstein

About the Author

Cass R. Sunstein is currently the Robert Walmsley University Professor at Harvard. From 2009 to 2012, he was Administrator of the White House Office of Information and Regulatory Affairs. From 2013 to 2014, he served on President Obama’s Review Group on Intelligence and Communications Technologies. From 2016 to 2017, he served on the Defense Innovation Board of the US Department of Defense. Sunstein is author of many articles and books, including two New York Times bestsellers: The World According to Star Wars and Nudge (with Richard H. Thaler).

His other books include Republic.com, Risk and Reason, Why Societies Need Dissent, The Second Bill of Rights, Conspiracy Theories and Other Dangerous Ideas, The Ethics of Influence, and Can It Happen Here? Authoritarianism in America. He lives in Cambridge, Massachusetts.

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