Reviewed by Charles K.
Early in University of Chicago law professor Cass R. Sunstein’s prescient new book, Radicals in Robes: Why Right Wing Extremists are Wrong for America, Sunstein imagines a frightening scenario: states are permitted to ban contraceptives, government agencies like OSHA and the EPA are crippled, and the federal government is allowed to discriminate on the basis of race and sex. How could this dystopian future come to be?
These scary possibilities could be made real, Sunstein warns, if originalist judges like Antonin Scalia and Clarence Thomas dominated the Supreme Court. Constitutional originalists like Scalia and Thomas argue that the Constitution should be interpreted with maximum deference to the idea of framer’s intent and to the text as it was written. Sunstein, a leading liberal scholar and frequent radio and television commentator, terms these judges fundamentalists because their opinions rely on a religious certainty in the righteousness of their point of view. Fundamentalists advocate broad and sweeping decisions in attempting to restore what they view as the "lost Constitution" or the "Constitution in Exile." Though Sunstein concedes that Scalia and Thomas "take the historical materials very seriously," much of Radicals in Robes is dedicated to highlighting instances where fundamentalists have forsaken their own judicial ideology in pursuit of a clearly political agenda.
The perfidy inherent in any attempt at a modern application of fundamentalist values is apparent. Sunstein points to Thomas and Scalia’s stands on affirmative action programs as proof. While claiming fealty to history, their decisions regarding affirmative action make no reference to the ratifiers of the Fourteenth Amendment. This is one of countless examples Sunstein offers in which fundamentalists disregard their own creed and align themselves with the "most extreme right-wing politicians of the twenty-first century."
In addition to fundamentalists, Sunstein breaks the judiciary down into three more factions: The perfectionists, who exist on the opposite end of the political spectrum from fundamentalists but tend to favor the same variety of large scale change; the majoritarians, absent from the current court’s make-up, but historically well represented, who support the decisions of the elected officials whenever tenable; and the minimalists, the natural opponents to fundamentalists, who endeavor to make decisions on a strict case by case basis and rigorously avoid the massive instant reformations supported by perfectionists and fundamentalists alike. Though Sunstein endorses minimalism, he insists that minimalist judges need not be politically liberal -- Justice Sandra Day O’Connor and the newly appointed Chief Justice have both been identified as minimalists -- but they do strongly disapprove of decisions that require the narrow-minded self-assuredness that has characterized the fundamentalists.
Aside from the subtitle’s grab for attention from liberal readers, and an incendiary introductory passage, the work suffers little from the kind of ranting and virulence that detracts from some current political literature. In fact, despite Sunstein’s reputation as one of our foremost progressive scholars, Radicals in Robes spends nearly as much time critiquing the liberal perfectionists as it does poking holes in right-wing fundamentalism.
To Sunstein’s credit, he applies his own minimalist principles to his arguments. Focusing each chapter on a different Constitutional issue, he patiently describes the cases relevant to the subject, and in precise and measured language he underlines the flaws in the fundamentalist perspective. Starting with a discussion of the plausible (in a strictly legal sense) objections to the constitutionality of a right to privacy, and climaxing with the utterly indefensible limiting of civil liberties for the executive branch’s war on terrorism, Sunstein slowly and gradually builds a compelling case.
Ultimately, Sunstein’s book serves as an excellent layman's primer on Constitutional law. He does away with the common liberal vs. conservative notions, which he deems "woefully inadequate," and targets the most important divisions of judicial methodology that might be used for evaluating a judge. As the nation edges closer to the Supreme Court nomination hearings of Samuel Alito Jr., one can only hope that when the time comes our Senators will do the same.