The Best Choice: In Praise Of Cass Sunstein

by Pejman Yousefzadeh on May 15, 2009

I start with the obvious: Cass Sunstein would not be my pick for the Supreme Court were I President of the United States, simply because he and I do not share the same judicial philosophy. I want my judges and Justices to adhere to original public meaning jurisprudence, and Cass Sunstein is not an originalist. As such, my view is that his approach to interpreting the Constitution is not the best approach. (Doubtless, he would say the same thing about my approach.)

But I will follow up with something just as obvious: Cass Sunstein is plenty bright and plenty learned enough–to say the least!–to be a Supreme Court Justice. While originalists like me disagree with him, we can still find areas of doctrinal commonality between us. A Justice Sunstein would be both a worthy opponent for originalists, and, perhaps more often than some might expect, a valued ally. For this, his nomination to the Supreme Court by President Obama to fill the seat being vacated by Justice Souter, ought to be desired across ideological lines.

Let’s start with the personal characteristics Sunstein would bring to the job. He is tremendously intelligent and a dedicated scholar. He is celebrated for his teaching style and for his command of the subject matter that he teaches. He is also an extremely prolific writer, as related by the following story from former blogger Will Baude:

I remember hearing a story– which now seems vaguely relevant– about somebody who was at Chicago for a time and used to eat lunch with Richard Posner and Cass Sunstein. This fellow and Sunstein used to get in long arguments with Posner, and leave the argument upset. The difference, the fellow explained, between him and Sunstein was that he went up to his office and fumed for an hour while Sunstein went up and popped out an article in response.

No wonder there is a Sunstein number. All joshing concerning Sunstein’s rampant hypergraphia aside, it is reassuring to see that if Sunstein were a Justice, he would take command of the shaping of his own thoughts on a particular case, and the way in which those thoughts are ultimately reflected in any opinions he writes. I don’t know whether Sunstein would be able to counteract the unfortunate trend towards allowing judicial clerks to commandeer the writing of a Justice’s opinions on the Court, but it is worth giving him the chance to try. After all, ultimately, it should be the Justices delivering their opinions, not the clerks.

Sunstein’s combination of sterling intelligence, a superb resume, and devotion to scholarly excellence would make his nomination the perfect riposte to concerns that the eventual Supreme Court nominee will be picked less for the merit and talent that nominee possesses, and more for the race, religious, and gender classifications attendant to that nominee. Whatever else one might say of the jurisprudence of Cass Sunstein, there would be no doubt that if he were the recipient of a Supreme Court nomination, he would have earned it in spades.

But what of Sunstein’s jurisprudence? To be sure, having an originalist like me endorse Sunstein for the Court constitutes a strange sight at first. But it shouldn’t; I recognize that there is a Democratic President and a Senate that is made up of nearly enough Democrats to break a filibuster. This means, of course, that we aren’t going to get a Justice Edith Jones or a Justice Paul Clement to replace Justice Souter. The next Justice will not be an originalist, and we will have to reconcile ourselves to that.

Of course, Justice Souter wasn’t much of an originalist himself, so it is not as if a Sunstein nomination would shake up the balance of power on the Court. Moreover, while Sunstein’s lack of adherence to originalism may be lamentable for people like me, there are aspects to his jurisprudence that I can appreciate. Sunstein is a judicial minimalist, which means that as a Justice, he would confine his rulings to the case and the facts at hand, and avoid “broad, sweeping judgments on contentious issues.” It is precisely these “broad, sweeping judgments” that get people so rightly and understandably riled up about judicial activism; such judgments only serve to take power that rightfully belongs in the political sphere and place it instead in the judicial sphere.

In addition to his appreciation for judicial minimalism, Sunstein also possesses an appreciation for behavioral economics. Oftentimes, the implementation of behavioral economics leads to libertarian paternalism, and to be sure, I take a dim view of libertarian paternalism. At the very least, however, there is a practicality to behavioral economics, and if I cannot have an adherence to originalism in the next Justice, I will settle for the kind of judicial practicality that comes from a respect for both judicial minimalism and behavioral economics. I suppose that it is possible for a Justice Sunstein to be an activist jurist, but given his writings and his record, the chances of him being an activist appears to be rather slim.

Indeed, there is plenty in Sunstein’s intellectual outlook that conservatives and right-of-center libertarians can celebrate. Sunstein is President Obama’s nominee to head up the Office of Information and Regulatory Affairs, but contrary to the example set by the President and many of the members of his Administration, Sunstein is not a knee-jerk regulator. Quite the contrary; the man even has the temerity to demand the use of cost-benefit analysis in determining the efficacy of a particular piece or form of regulation. This has gotten Sunstein into some nasty trouble with the Left. The good news is that the anger Sunstein has incurred will not be enough to stop his confirmation as the head of OIRA. The better news, however, is that Sunstein’s philosophy on regulation would serve the country well if he were a Justice on the Supreme Court, and would prevent the Court from making hasty, and deleterious judgments when confronted by cases with knotty regulatory conundrums that make their way on to the Supreme Court’s docket.

No, Cass Sunstein is not a woman. No, Cass Sunstein would not help the President achieve any historical “firsts” if he were nominated; in addition to being a man, Cass Sunstein is also white. It goes without saying that the Supreme Court is not, and should not be the province of white men only. But it should be the province of excellent legal scholars and jurists. Can there be any doubt that Cass Sunstein is an excellent legal scholar? Can there be any doubt that he has the intellect and the resourcefulness to translate his skills and experience to become a formidable jurist? And at the end of the day, aren’t these the qualities that we should want most in our next Supreme Court Justice?

Again, let there be no doubt that in a perfect world–given my definition of “perfect”–Cass Sunstein would not be my first, second, third, fifth, or even tenth choice for the Supreme Court, as a consequence of our doctrinal differences. I can name plenty of lawyers, judges, and legal scholars I would want to see ascend to the Court before Sunstein does. But that doesn’t change the fact that the differences between Sunstein on one hand, and originalists on the other, are not as great as many originalists might fear. Sunstein’s doctrinal modesty and his superb qualifications make him the best potential Supreme Court nominee originalists like me could hope for. They would also make him a very impressive Supreme Court Justice.

Read more and comment at Pejman Yousefzadeh’s blog.

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