On Judging the Judges of the US Supreme Court

Cass R. Sunstein categorizes the Court’s judges into personas, tracing their personalities according to the position they assume in their rulings.

Few books published this year have mastered the task of explaining to the general public the inner workings of the US Supreme Court (namely, how the Court’s rulings take place) better than Cass R. Sunstein’s Constitutional Personae. Only rivaling, perhaps, Melvin Urofsky’s Dissent and the Supreme Court (Pantheon, 2015), instead of focusing on a given institution, as the latter does, Sunstein’s book is centered around a far more interesting topic: the judges themselves.

In order to demystify the reasoning behind the Supreme Court’s (and, by happenstance, judicial reasoning as a whole) judicial decision system, Constitutional Personae’s main idea is a daring undertaking, maybe one of Herculean proportions: Sunstein sets out to categorize the Court’s judges into personas, tracing their personalities according to the position they assume in their rulings. The idea is far from new: it recalls François Ost’s attempt to summarize the Judiciary into three types of judges, with them falling into at least three self-explanatory models: Hercules, Hermes and Jupiter.

Now, the Olympian references give way to Sunstein’s classification of personas, tracing the Supreme Court’s judges as heroes, soldiers, minimalists or mutes, pointing out the possibility of intersection between those personas or models. As it is presented, the book offers a new typology on the subject of decision-making within the scope of the Judiciary. In a sense, it follows and helps solidify the theories constructed by Sunstein in his (aptly titled) A Constitution of Many Minds (Princeton University Press, 2011).

When it comes to the distinctions between the personas, they are very clear. About the heroic mindset, he writes:

As I am understanding them here, all Heroes can be considered “activist” in the distinctive sense that they are willing to use the Constitution to strike down acts of Congress and of state legislatures.

That is, the “hero” kind of Judge thinks the Judiciary should behave as an activist. Moreover, the heroic persona considers that a court ruling (more specifically, as in the book’s case, a Supreme Court’s ruling) should correct the injustices to be found within society’s everyday life, taking the lead in discussions which seem to interfere in the realms of subjects such as social justice. The undisputable example? Marriage equality and its Supreme Court deferral. The political is juridical and vice-versa.

The “soldier” type of judge is more deferential towards the “due” political process, with respect to the separations of powers to be found within the Constitutional framework of principles. For that kind of interpretative mindset, the Judiciary shouldn’t interfere that much in the social reality, having the right only to confer concreteness to the Constitution itself, only acting when the Supreme Court perceives a blatant violation of rights. It could be as a well considered a lesser, more pensive and calculist version of the activist model.

The minimalist persona (or model) seems to be the most traditional archetype which Constitutional Personae brings to the table. The minimalist judges are, above all, cautious in regards to the political consequences the rulings might have. They are not always fans of the broad repercussion of the cases under analysis. Under this category, Sunstein creates a new type of judge: one who follows a sort of Burkean minimalism, sticking to tradition and giving time for the political process to act.

The fourth and last kind of model is the “mute” one. When facing hard cases themselves, the Judge chooses to be silent when dealing with decision making in respect to cases of broad repercussion in society. The answer to that? They stick to the prevailing jurisprudence. Considering the very own nature of the Supreme Court, Sunstein does not typify any Court era or single judge as mute, for obvious reasons.

Considering all that, a decision that takes place in the Supreme Court should, according to Sunstein, face the embattlement of these types. Sometimes a single interpretative lens shall prevail for an era era. When writing about the Warren Court, he says:

Because of its effects in invalidating racial segregation, Brown v. Board of Education is the iconic heroic decision, and its author, Chief Justice Earl Warren, is the iconic heroic judge.

Constitutional Personae does not hide its penchant for the minimalist type of interpretation (or model, or persona). He states such a model should be applied when facing institutional themes, such as federalism, but Sunstein himself admits the minimalist (or Burkean) persona should be relativized when a topic such as equality is under discussion. He recognizes that traditions can be, many times, unfair, and that is why the Heroic persona should prevail sometimes. That said, the minimalist judge is not a conventionalist, nor an activist. One is between the hero and soldier archetypes.

The book also notes, importantly, that these personas are not, nor work, as fixed points. They, for most of the time, intertwine, even mingle. They shouldn’t, of course, be static, applied all the time for all the hard cases under the Court’s jurisdiction (a good example of this is, again, the marriage equality ruling). So far, so good.

Sunstein’s analytical view of the Supreme Court’s personas is indeed pertinent. However, problems start to arise once see the nature of the book’s study: subjectivity.

Contrary to prevailing beliefs, the Judiciary as a whole (consider, here, the interpretation of Law) is still being kept hostage by the ghost of Realism, where subjectivity is king. Law itself gives place to an analysis that, sometimes, discredits justice, valuing opinions.

I should add, however, that this is a not really a problem to be found in the book. It’s more like a symptom showcased by Sunstein’s theory of personas. For example, which persona (or model, or way of interpretation) is better for a given society: None, of course. Even if you say those models are not static, they do not give any indication on how to proceed.

Which leads us to question whether such a categorization has a use, a purpose. The theory itself is very enlightening. It gives a new read to the Supreme Court’s role in society. But I fear Sunstein’s set of personas will be used as some sort of weapon: they will give rise to statistical predictions of rulings, attempts to foresee, categorize how the Judiciary will handle a given matter of discussion. An excessive focus on the Judge, not the Law or even Justice as a (moral, why not?) value. The most important thing about Constitutional Personae is not its theory, but rather its view of the Judiciary. Today, the Law is nothing but what judges (who are now categorized) say it is. We’ve reached some sort of philosophical stagnation.

Sunstein himself, however, acknowledges the limitations of this understanding (of his own theory) writing that:

We have seen that as a matter of principle, it makes no sense to adopt a particular Persona for all occasions, and indeed few people do so. The right persona is a product of a right theory of interpretation.

That way, Sunstein, even though not hiding his predilection for the Minimalist type of decision making, he does not see it as a theory itself:

I have argued on behalf of a general enthusiasm for the Minimalist, on the ground that minimalism is well suited to the institutional virtues and limits of the Judiciary. But minimalism is not a complete theory of interpretation, and it is hardly an approach for all times and all seasons.

On a final note, then, how should we read Constitutional Personae? It doesn’t construct a theory, nor should be read as one (and there’s no demerit in that). In a sense, it works as a very passionate, all-encompassing description of how minds and, on a broader scope, societies and prejudices work. And that shall suffice.