Whew! Sunstein: Roberts Not A “Fundamentalist”

In the Wall Street Journal today University of Chicago law professor (and arbiter of the nature of conservatism) Cass Sunstein repeats his familiar distinction between good conservatives and bad conservatives — his labels, of course, are different: minimalists and fundamentalists. (Familiar, because discussed here, here, and here.)

Minimalist conservatives insist that social change should occur through the democratic process, not through the judiciary. They do not want to extend the liberal Supreme Court decisions of the 1950s and ’60s. On principle, they prefer narrow decisions and small steps, nudges not earthquakes. When confronted by contentious issues, minimalists focus on details and particulars, and are prepared to rule in ways that run contrary to their politics.

Fundamentalist conservatives do not believe in small steps. They think that in the last 50 years, constitutional law has gone badly, even wildly, wrong. They want to reorient it in major ways. They oppose Roe v. Wade, of course. But they also reject the right of privacy itself, arguing it lacks roots in the Constitution. They do not hesitate to use judicial power to strike down affirmative action and to protect property rights. They are entirely prepared to restrict the authority of Congress by invalidating laws protecting the environment, campaign finance reforms or gun control restrictions. They also have an expansive view of presidential power.

Sunstein, interestingly, finds little evidence of “fundamentalism” in Judge Roberts’s record and concludes therefore that liberal opposition to his nomination “seems especially odd at this state.”

One could say as well that Sunstein’s call for moderate judges is itself somewhat odd. In fact, Justice Scalia did in effect say that last week (he wasn’t referring to Sunstein) in a speech in California, where he observed:

Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we’d like it to say?