The Jurisprudence of Uncertainty

Abstract

Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court. Cambridge: Harvard University Press, 1999. xiv + 290 pages. $29.95 cloth; $18.95 paper. In 1959, the political scientist Charles Lindblom published a celebrated defense of incremental policymaking (Lindblom 1988a). In theory, Lindblom observed, policymakers are expected to formulate plans in a comprehensive fashion, clearly identifying their objectives and carefully comparing every alternative means of action. Yet in practice, Lindblom argued, comprehensive policy formulation is almost never performed. Policy-- making cannot begin with the ranking of goals because the necessary consensus on political ends usually does not exist and cannot be manufactured. With high-level agreement practically impossible, policymakers seek agreement on a more concrete plane: they limit their attention to policy alternatives that differ only slightly from the status quo, thereby reducing debate to a narrow set of marginal comparisons. Rather than developing a comprehensive account of the best policy option, policymakers simply muddle through, making whatever incremental judgments the prevailing conditions of incomplete information and partial agreement will allow. If one were to look for a contemporary exemplar of Lindblom's incrementalism, one might well be drawn to Justice Sandra Day O'Connor. Justice O'Connor currently sits in the center of the Supreme Court's ideological spectrum, a position that makes her views decisive in controversies ranging from abortion to affirmative action. O'Connor generally uses her swing position to forge a narrow path. She routinely limits her rulings to the facts of the case at hand, reaching results that resolve specific aspects of the dispute while leaving broader legal questions open (Maveety 1996). Instead of adhering to a comprehensive jurisprudential theory, she tends to fashion her opinions around limited cores of agreement, blurring hard-edged principles for the sake of compromise solutions. Much like Lindblom's prototypical policymaker, O'Connor moves from decision to decision, pursuing small-scale settlements rather than seeking sweeping conclusions. O'Connor is not the only Justice in the history of the Supreme Court who might be described as following a path of compromise and accommodation (Jeffries 1994). Yet, just as incrementalism runs counter to the expectation that policymakers will formulate comprehensive plans, O'Connor's strategy is at odds with conventional expectations about judicial action. According to the common ideal, judicial decisionmaking is meant to be rooted in the clear articulation and neutral application of general principles (Peretti 1999:11-35). The origin and content of these general principles may be conceptualized along many different lines. In whatever way they are understood, however, the principles are taken to be of primary importance. Judges should strive to assimilate each dispute into a principled order, articulating a framework of rules and standards capable of regulating subsequent judicial decisions (Wasserstrom 1961:14-22). In the ideal case, the principled legal order makes judicial action perfectly reasoned and predictable: every legal outcome is reached by the logical application of preexisting rules and standards to each new fact situation. Moreover, within such an ideal system the exercise of judicial power is restrained and impartial: court decisions do not depend on the private whim or bias of the judge presiding over the case, but on a known set of legal principles.1 The problem is not that Justice O'Connor falls short of the ideal, but that she does not appear to aspire to it in the first place. She inverts the ideal priorities by adjusting legal principles to suit political constraints. Like an ordinary politician, O'Connor seems to pay attention to the different interests at stake in a given controversy, seeking whatever reasons are acceptable to participating parties rather than strictly applying general principles that transcend the issue at hand. …