Courting disaster

Legal scholar Cass Sunstein explains the dangers of "fundamentalist" judges on the Supreme Court, why conservatives should fear right-wing radicals as much as liberals, and what went wrong with Roe v. Wade.

By J.J. Helland

Sep 12, 2005 | Imagine this: One day in the not-so-distant future you wake up to discover that the constitutional rights you've always enjoyed have been drastically scaled back -- or eliminated altogether. The United States you live in no longer respects an individual's right to privacy. The state of Utah has established Mormonism as its official religion. And many provisions of important environmental, civil rights and labor laws have been struck down as unconstitutional. And all this is not only perfectly legal but actually sanctioned by the Constitution.

Such is the bleak scenario that University of Chicago law professor Cass Sunstein imagines in the introduction to his book "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America." And it's not so far-fetched. With two vacancies on the Supreme Court, conservatives have a chance to dramatically shift the bench to the right. And if it were to become dominated by more fundamentalist justices like Antonin Scalia and Clarence Thomas, the "federalist revolution," as it is called in American jurisprudence, will result in a radical transformation of the Constitution and the concept of liberty as we know it.

Fundamentalists like Scalia and Thomas, Sunstein writes, believe that "the Constitution must be interpreted according to its 'original understanding'" -- meaning, we should read the Constitution the same way people did when the founding documents were ratified. Sunstein thinks this would be disastrous for America; a right-wing bench would radically "destabilize not only our rights but our institutions as well," he writes, and fundamentalists will be "all too willing to read the founding document as if it embodied a party platform."

Yet despite its title, "Radicals in Robes" is no left-wing diatribe. Sunstein shuns "judicial arrogance in its many forms, liberal and conservative alike." And for all the odious implications of fundamentalism he outlines in the book, Sunstein concedes there are problems with the other side, too. "Liberal perfectionism," and its less-than-strict fidelity to the Constitution, is often a valid target of fundamentalists. Placing himself smack in the center, Sunstein instead argues for a "minimalist" judicial approach that eschews political dogma, heeds legal precedent, and is never too sure of its own rectitude. "Minimalism makes it possible for people to disagree when agreement is necessary, and unnecessary for people to agree when agreement is impossible," he writes.

In "Radical in Robes" Sunstein presents an instructive appraisal of the American legal landscape and a cautionary tale, should fundamentalists succeed in securing a majority on the Supreme Court. Salon spoke to him by telephone about his new book, Judge John Roberts, and problems with Roe v. Wade.

Despite the title "Radicals in Robes," I was struck by how measured and tempered the tone of the book was.

In writing the book I was torn between my more basic impulses -- where I treat all views with respect, accuse no one of anything, and be generous with whom I disagree -- and the opposing impulse, which says that the fundamentalists are often playing partisanship when they purport to be doing law. The book was kind of born in a thought that fundamentalists are sometimes hypocritical and haven't defended their position. I hope that the charitable impulse is the dominant one in the book.

Yet, you warn against what would happen in America if fundamentalists dominated the Supreme Court. What would America look like then if fundamentalists eventually got their way, and all these states were allowed to pass whatever laws they wanted?

If, for example, the separation of church and state were abolished at the state level, we would have really horrendous fights among competing religious groups. This would, at the state level, move the United States and its political processes in the direction that we're now seeing in Iraq. Where different people with different ethnic and religious identifications are really at each other.

How does the recent death of Justice Rehnquist play into all of this, especially since John Roberts is now being considered to take his place as chief justice?

Rehnquist's passing obviously raises the stakes. Now President Bush has a chance to alter the court in a pretty major way. We don't know exactly what Roberts will be like, but we do know that he's excellent, likable, and young. [If he is confirmed] as chief justice, he'll have a significant influence. If the next appointment is also a young conservative, the court will be affected for a long time -- especially if the conservative has fundamentalist leanings.

Do you identify Judge John Roberts as a part of the fundamentalist movement?

Roberts is clearly an affable, good person with a really first-rate mind. But there are people like Justice Scalia who are also affable, good and have a first-rate mind, but who are, in some ways at least, radical. Judge Roberts seems to be quite lawyerly, not given to bitterness, anger or broad pronouncements. On the basis of what record there is so far, he looks more like a Rehnquist type than a Scalia or Thomas. That is, someone who is definitely conservative and who will shift the court a bit. But maybe he'll be more unpredictable than Rehnquist has been. I think it's a very interesting choice, partly because of the ambiguity. He doesn't seem like someone who has a clearly defined agenda.

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