Minimalism and the Roberts Court

Responding to a href="http://balkin.blogspot.com/2009/06/why-has-roberts-court-gone-minimalist.html"Jack Balkin/a on the Court's "minimalist turn," Johnathan Adler a href="http://volokh.com/archives/archive_2009_06_28-2009_07_04.shtml#1246374141"argues/a:br /br /blockquoteIt's an interesting post, but I reject Balkin's premise. There's nothing "sudden" about the Roberts Court's minimalism. Rather, a conservative minimalism has been the defining characteristic of the Roberts Court and, as a general matter, of the two newest justices. In this regard, iNAMUNDO/i and iRicci/i, are of a piece with iWisconsin Right to Life/i, iAyotte/i, iGonzales v. Carhart/i, iNRDC v. Winter/i, and many other cases in which the Court either adopted a very narrow, incremental holding or avoided reaching an underlying constitutional question./blockquoteI think, however, that the claim that nothing has changed is missing something crucial. I attempt to defend the distinction in detail a href="http://works.bepress.com/scott_lemieux/1/"in this paper/a for anyone who's interested, but I think it's crucial to distinguish between span style="font-style: italic;"formal/span minimalism andspan style="font-style: italic;" substantive/span minimalism. I agree with Adler that Roberts and Alito have always been formal minimalists, declining to span style="font-style: italic;"explicitly/span overrule precedents or make broad pronouncements. But prior to this term, this minimalism has often been strictly formal -- several of the cases Adler cites a href="http://lefarkins.blogspot.com/2007/06/preserving-what.html"were not substantively minimalist/a. span style="font-style: italic;"Carhart II, /spanin which they declined to formally overrulespan style="font-style: italic;" Carhart I/span span style="font-style: italic;" /spanalthough they were upholding a statute virtually identical to the one the Court had previously struck down, is the most obvious (and farcical) example. As for span style="font-style: italic;"Wisconsin Right to Life, /spanI can't resist once again quoting from a href="http://www.law.cornell.edu/supct/html/06-969.ZC1.html"Scalia's footnote 7/a:br /br /blockquoteThe claim that §203 on its face does not reach a substantial amount of speech protected under the principal opinion’s test—and that the test is therefore compatible with McConnell—seems to me indefensible. Indeed, the principal opinion’s attempt at distinguishing McConnell is unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices of this Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. This faux judicial restraint is judicial obfuscation.span style="font-style: italic;" /span/blockquoteHow the Court characterizes the relationship between a holding and its precedents is much less important than whether a holding actually is consistent with precedent. In many cases, Alito and Roberts' formal minimalism has concealed a substantive disregard for the relevant precedent. In this sense, the VRA case a href="http://lefarkins.blogspot.com/2009/06/section-5-of-voting-rights-act-narrowed.html"really was different/a. My guess, though, is that it's an outlier, an unusual case where a conservative substantive outcome and formal minimalism were essentially incompatible. In the future, I would expect the formal minimalism of Roberts and Alito to continue to mask a substantive conservatism that differs from Thomas and Scalia's primarily in that it's even more consistent.div class="blogger-post-footer"img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/7163938-7871178036731809612?l=lefarkins.blogspot.com'//div

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