Cass Sunstein has long argued that judicial minimalism promotes democracy. According to Sunstein’s view, a court can encourage the political branches of government to address an issue by using doctrines such as vagueness, nondelegation, and desuetude. Although much has been written about minimalism, very little has been said about the democracy-promotion thesis in particular. Yet it is one of the central claims of contemporary minimalism. This article attempts to remedy the deficiency. It argues that minimalism does not promote democracy because minimalist decisions lack the depth necessary to trigger democratic deliberation. The argument occurs in three steps. First, the article undertakes a detailed examination of the notions of narrowness and shallowness, the central components of judicial minimalism. It offers a unique interpretation of both ideas, and shows, among other things, how a decision can be both narrow and deep - an assertion repeatedly made by Sunstein but never explained in detail. Second, the article discusses the deliberative account of democracy, and shows how a minimalist decision could be thought to spur democratic activity in this sense. Third, the article constructs a simple model of deliberation for evaluating the democracy-promotion thesis. As the model shows, deliberation often requires the production of highly abstract reasons, whereas shallow decisions avoid such reasons because they generate disagreement and increase the risk of judicial error. The article concludes that minimalism does not promote democracy. Deeply justified decisions can promote democracy, however, and do not necessarily show disrespect for those who disagree, as Sunstein suggests.
Seattle University Law Review
Minimalism and Deliberative Democracy: A Closer Look at the Virtues of "Shallowness",
Seattle U. L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/journal_articles/127