In 2006, Chief Justice John Roberts said he favored deciding cases on “the narrowest possible grounds.” He argued that modest rulings would be more likely to command a consensus within the Supreme Court – and perhaps within the country as well.
Roberts was embracing an approach to legal reasoning known as “judicial minimalism.”
Minimalists like to avoid the most controversial issues. They display what Yale law professor Alexander Bickel called more than half a century ago “the passive virtues” of silence and restraint. When minimalists are required to resolve cases, they adopt cautious, incremental approaches that do not take sides on great controversies involving guns, abortion, affirmative action, gay rights and religious liberty.
In two of the most important cases this term, the Supreme Court chose minimalist routes. In one of those cases, involving a conflict between gay rights and religious liberty, minimalism deserves enthusiastic applause. In the other, involving partisan gerrymandering, well – maybe not.
In the gay-rights case, Jack Philipps, a Colorado baker, told a same-sex couple that he would not make a cake for their wedding. He claimed that he opposed same-sex marriage and was exercising his constitutional right to act in accordance with his religious conviction.
Writing for a 7-2 majority, Justice Anthony Kennedy spoke in minimalist terms. That ruling left the fundamental issues unresolved. Kennedy left open the possibility that public officials could conclude that the guarantee of equal treatment barred discrimination against same-sex couples, even if it was motivated by religious convictions – as long as the officials weren’t hostile to religion in general.
Minimalism made sense in this case. Americans are divided about the relationship between religious liberty and gay rights. In the face of that division, federal judges should refrain from resolving the most controversial questions when they do not need to.
Gerrymandering ruling
But when democracy itself is at stake, the argument for judicial silence is weakened.
Gill v. Whitford, a case from Wisconsin, posed an issue that is central to the future of American democracy: Does the Constitution impose judicially enforceable limits on efforts by Democrats or Republicans to try to entrench their own power through the design of voting districts?
Writing the court’s unanimous opinion, Roberts refused to say. He concluded that the plaintiffs had not shown an “injury in fact,” required by the Constitution for the invocation of judicial power.
Roberts emphasized that individual voters might be able to establish the requisite injury if they could show that their votes were diluted because they lived in a gerrymandered district. Suppose, for example, Democratic voters live in a district that had been specifically designed to ensure a strong majority of Republican voters. The problem in the Wisconsin case is that the plaintiffs did not demonstrate that they lived in any such district.
Nonetheless, the court refused to terminate the proceedings. Instead, it sent the case back to the trial court to give the plaintiffs a chance to make the required demonstration.
That means that before long, partisan gerrymandering will come back to the Supreme Court.
Under long-standing law, the court was right to insist that Wisconsin’s voters must show concrete harm. But in the context of voting rights, the argument for minimalism is less compelling.
It’s one thing to say that in democracy’s name, judges should proceed cautiously on the largest social issues. It’s quite another to suggest that judges should abstain when democratic self-government is itself on the line.
If one political party is entrenching itself, judicial silence is not exactly golden.
Cass Sunstein is a Bloomberg Opinion columnist. He is the editor of “Can It Happen Here? Authoritarianism in America” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
