Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America

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Even with the recent changes in its makeup, most people think the Supreme Court is roughly balanced between left and right. This is a myth. In fact the justices once considered right-wing are now the Court's moderates; those who were once centrists are now the Court's "liberals"; and the liberal element, once represented by Thurgood Marshall and William Brennan, has all but disappeared.

Many people also think that judicial activism is the province of liberals. This is also a ...

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Overview

Even with the recent changes in its makeup, most people think the Supreme Court is roughly balanced between left and right. This is a myth. In fact the justices once considered right-wing are now the Court's moderates; those who were once centrists are now the Court's "liberals"; and the liberal element, once represented by Thurgood Marshall and William Brennan, has all but disappeared.

Many people also think that judicial activism is the province of liberals. This is also a myth; since William Rehnquist was confirmed as Chief Justice in 1986, the Supreme Court has struck down decisions of Congress more than thirty times-an unprecedented record of judicial activism. Some conservatives want to return to the eighteenth-century Constitution or to restore "the Constitution in Exile," by which they mean the Constitution as it existed before the administration of Franklin Delano Roosevelt.

In Radicals in Robes, Cass R. Sunstein explains what this constitutional vision would mean. It would endanger environmental regulations, campaign finance laws, and the right to privacy. It would threaten the Federal Communications Commission, the Securities and Exchange Commission, the Environmental Protection Agency, and many other federal agencies. It might well allow states to establish official religions. It would impose sharp new limits on Congress's authority to protect rights.

Radicals in Robes pulls away the veil of rhetoric from a dangerous and radical movement and issues a strong and passionate warning about what some extremists really intend. One of the most respected legal theorists in the country, Sunstein here issues a warning of compelling concern to us all.

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Editorial Reviews

Publishers Weekly
In this timely and keen analysis of how judges interpret the Constitution today, Sunstein, a University of Chicago law professor and New Republic contributor, espouses what he calls a "minimalist" approach that respects precedent and takes only small-scale steps forward, and lashes out at the "fundamentalism" practiced by extreme conservative judges. Legal fundamentalists profess to base their interpretations on the meanings ascribed to the Constitution by the original ratifiers. But in many respects, Sunstein says, fundamentalists ignore, or misread, the history they claim to venerate. Further, he says many fundamentalist positions would undermine liberties Americans have come to value--rights that one fundamentalist judge, offering the example of the right to privacy, says were created out of whole cloth by the Supreme Court. For Sunstein, capitulation to the fundamentalists could lead to state (but not federal) establishment of religion, to the elimination of a protected right to privacy and to invalidation of most environmental regulations. We should be skeptical, the author insists, when political ideology seems to dictate judges' constitutional doctrine. This compressed book covers all the hot-button constitutional issues in 10 short, plainly written chapters. Americans monitoring the upcoming Senate deliberations over Bush's nomination of John Roberts to the Supreme Court will want to bear in mind the arguments Sunstein so trenchantly presents. Agent, Sydelle Kramer. (Sept. 6) Copyright 2005 Reed Business Information.
Kirkus Reviews
Attempting to support his alarmist view of how life would degrade under the sway of extreme right-wing judges, Sunstein (The Second Bill of Rights, 2004, etc.) nevertheless presents a surprisingly balanced history of constitutional law. Sunstein (Jurisprudence/Univ. of Chicago Law School) warns that legal fundamentalists, who interpret the Constitution according to the "original understanding," that is, how the framers and ratifiers conceived it, would deprive us of many of the freedoms and protections that we now take for granted. Fundamentalist courts would, for example, overturn Roe v. Wade on the basis that the Constitution does not protect privacy, strike as unconstitutional key provisions of anti-discrimination laws such as the Civil Rights Act and environmental safeguards such as the Clean Air Act, permit states to bar women from practicing as doctors or lawyers, declare even modest gun control laws invalid, scale back the rights of the accused, shield commercial advertising from government regulation and poke giant doorways in the wall that separates church and state. In fact, states could establish official religions. Sunstein's most compelling argument against fundamentalism is that the framers and ratifiers were only human, so the Constitution can't be perfect. Sunstein, however, does not establish a strong one-to-one correspondence between fundamentalism and extreme right-wing politics, other than to say that Justice Antonin Scalia, the most conservative member of the U.S. Supreme Court, is a fundamentalist. Not until near the end does he state, without much support, "The constitutional judgments of fundamentalists are eerily close to the political judgments of conservativepoliticians." His evidence that courts are generally shifting to the extreme right is also weak. Sunstein promotes a minimalist approach to constitutional law, which allows that it's okay to nudge the law carefully in one direction or another (right or left) with incremental decisions, rather than overreach, as he believes the Supreme Court did in Roe v. Wade. Not entirely the partisan screed that you'd expect, not especially provocative, but enlightening and in some places fascinating.
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Product Details

  • ISBN-13: 9780465083268
  • Publisher: Basic Books
  • Publication date: 9/26/2005
  • Edition description: ANN
  • Edition number: 1
  • Pages: 304
  • Product dimensions: 6.58 (w) x 9.48 (h) x 0.99 (d)

Meet the Author

Cass R. Sunstein is Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago Law School and a contributing editor at The New Republic and the American Prospect. He has testified before Congress on numerous occasions and has contributed as well to such publications as the New York Times, the Los Angeles Times, and the Washington Post. His numerous books include Republic.com, Risk and Reason, Laws of Fear, and The Second Bill of Rights. He lives in Chicago, Illinois.

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Table of Contents

Preface xi
Introduction: The Constitution in Exile 1
Part 1 The Great Divide
1 Fundamentalists and Minimalists, Perfectionists and Majoritarians 23
2 History's Dead Hand 53
Part 2 Great Divisions
3 Is There a Right to Privacy? 81
4 Who May Marry? 111
5 Race and Affirmative Action 131
6 National Security 151
7 Minimalism at War 175
8 Separation of Powers 199
9 Guns, God, and More 217
10 Fundamentals 243
Notes 253
Index 269
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