Opinions with Style

January 1999

Type: Law review article
Author: Steve France
Source: A.B.A. J.
Citation: 85 A.B.A. J. 38 (1999)

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Opinions With Style

Scholar says Court has embraced O'Connor's 'minimalism'


Justice Sandra Day O'Connor has often expressed a skepticism verging on contempt about using what she calls "grand, unified theory" as a way to decide cases.

Nonetheless, University of Chicago law professor Cass Sunstein has his own grand, unified theory to explain the justice's style of judging. In a new book, he holds her out as the supermodel for "judicial minimalism," the latest, hippest theory in the boutique.

A minimalist writes opinions with narrow holdings and shallow rationales, often reaching the result by balancing the relevant factors. This approach leaves important questions about broader social issues undecided for as long as possible, promoting democratic deliberation, Sunstein says.

Unlike judicial restraint, which says judges should hold off making big decisions, minimalism allows judges to assert themselves as long as they "do and say as little as is necessary in order to justify an outcome," Sunstein says.

A maximalist, on the other hand, writes broad holdings founded on tightly reasoned theories even in cases that limit judicial power. Justice Antonin Scalia is the leading, but often frustrated, maximalist on the Court.

Now O'Connor's style is the Court's style, Sunstein argues in One Case at a Time: Judicial Minimalism on the Supreme Court. He calls its embrace of minimalism "the most striking feature of American law in

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