Judicial minimalism refers to a philosophy in United States constitutional law which promotes itself as a politically moderate viewpoint such as that of retired Judge Sandra Day O'Connor. It is often compared to other judicial philosophies such as judicial activism, judicial originalism, and judicial textualism.
The minimalist viewpoint
Minimalists offer very small, case-specific interpretations of Constitutional Law as an alternative to what they see as the excesses of extremists on both sides. They believe that a stable Constitutional Law is in everybody's interest, and place great importance on the concept of precedent and stare decisis. They argue that only very small interpretations away from precedent, narrowly-applied, and based on the general direction of society constitute true judicial restraint rather than any originalist or strict constructionist viewpoint (in opposition to conservatives), while still allowing for a Living Constitution (albeit one with a much slower adaptation than many liberals would like). Depending on the minimalist's particular preferences, a minimalist on the court would be likely to either very slowly bolster or chip away at abortion precedents rather than proclaim a lasting ban or legalization on abortion via Constitutional rulings.
Justice Sandra Day O'Connor is often hailed by minimalists as their ideal Justice. In a concurring opinion in the 2011 Supreme Court case NASA v. Nelson, Justice Antonin Scalia derided minimalism as a "never-say-never disposition [which] does damage for several reasons." Justice Samuel Alito, writing for the majority, defended the Court's minimalist approach in choosing to "decide the case before us and leave broader issues for another day."
Summary and complaints against "judicial extremism"
Largely associated with Cass R. Sunstein, it is a viewpoint which criticizes the more conservative stance of originalism as judicial activism in disguise. Minimalists believe that a faithful application of originalist theory would result in a system of constitutional law where modern societal mores would be ignored, in favor of the now-antiquated ones held by the Founders and would likely include ideas about gender equality, racism, etc. that modern society would find objectionable. Minimalists claim that conservatives who subscribe to originalism are likely to ignore precedent where it is convenient for conservative political aims. Minimalists also criticize traditional liberal judicial activism as overexpansive and also ignorant of precedent when it is convenient to liberal political aims.
- Sunstein, Cass R. (2005). Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. Cambridge, MA: Basic Books. ISBN 0-465-08326-9. Sunstein's book, despite its title, has been perceived as an attack on both judicial conservatives and liberal activists..
- Sunstein, Cass (2006). Stanford Law Review, Volume 58, Issue 6 - April 2006, "Problems with Minimalism."
- Volokh, Eugene (2011-01-19) “Judicial Minimalism” (at Least of One Sort), Pro and Con, Volokh Conspiracy