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When John Roberts became Chief Justice of the United States more than a decade ago, commenters frequently described him as a minimalist. Although Chief Justice Roberts himself resisted this label, he fairly inspired it by advocating for more consensus among his colleagues and by famously recounting to a Georgetown Law Commencement audience his view that “[i]f it is not necessary to decide more to dispose of a case ... it is necessary not to decide more.” The suggestion that the Court decide significant issues one case at a time recalls the work of Cass Sunstein, the American academy’s most articulate minimalist.

For many of Chief Justice Roberts’s detractors, describing him as a minimalist seems Orwellian. In case after case during his tenure, the Chief Justice has written or joined opinions in which a sharply divided Court dramatically changed the law, often displacing considered legislative judgments in the process. In Citizens United v. FEC, the Court invalidated corporate political campaign expenditure limits. In Shelby County v. Holder, the Court neutralized section 5 of the Voting Rights Act of 1965. In National Federation of Independent Businesses v. Sebelius (NFIB), the Court held that Congress did not have the Commerce Clause power to force Americans to purchase health insurance, and that Congress could not condition existing Medicaid funding on states expanding the scope of their Medicaid plans.

This Article argues that both contentions are correct. Chief Justice Roberts is both a minimalist and a maximalist. Reconciling this apparent tension requires an understanding of the different ways in which one can practice minimalism. As Sunstein has explained in detail, and as Part I elaborates, minimalism is typically understood as decision-making that is both “narrow” rather than “wide” and “shallow” rather than “deep.” A minimalist prefers that courts decide one case at a time — that is, narrowly — without necessarily resolving similar cases that may share a close factual nexus. A minimalist also prefers that courts justify decisions through rationales that are incompletely theorized — that is, shallow — and that preserve the possibility of consensus. For Sunstein, this dual commitment to narrow and shallow rulings defines a jurist as a minimalist in the tradition of the Whig political theorist Edmund Burke.


Law | Supreme Court of the United States