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Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America - Hardcover

 
9780465083268: Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America
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Most people think that the Supreme Court has a rough balance between left and right. This is a myth; in fact the justices once considered right-wing have now taken the mantle of the Court's moderates, and the liberal element has all but disappeared. Most people also think that judicial activism is solely a liberal movement. This is also a myth; since William Rehnquist was confirmed as Chief Justice in 1986, the Supreme Court has engaged in an unprecedented record of judicial activism. These two factors are feeding a movement to restore what many conservatives call "The Constitution in Exile," by which they mean the Constitution as it existed before the Roosevelt administration. Radicals in Robes explains what the restoration of this constitutional vision would mean. It would mean the end of the FCC, the SEC, the EPA, and every other federal agency that enacts regulations that have the force of law. It would mean that the clause of the First Amendment that says that Congress may make no law "respecting an establishment of religion" would be turned on its head. Marriage laws and many other familiar areas of modern life are all in the sights of this conservative movement. Radicals in Robes takes judicial philosophy out of the law schools and shows what it means when it intersects partisan politics. It pulls away the veil of rhetoric from a dangerous and radical right-wing movement and issues a strong and passionate warning about what conservatives really intend. One of the most respected legal theorists in the country, Cass R. Sunstein here issues a warning of compelling concern to us all.

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According to legal scholar Cass Sunstein, it is not enough to label judges as "liberal" or "conservative" or any other ideological stripe; one must also take into account their approach to constitutional interpretation. In Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, he outlines four approaches that have long dominated constitutional debate--perfectionism, majoritarianism, minimalism, and fundamentalism--and argues for minimalism and against fundamentalism (perfectionism and majoritarianism are given less attention since they have largely fallen out of favor in recent decades). Minimalists believe in narrow, incremental decisions rather than broad rulings. They respect precedent, recognize the limited role of the judiciary, and "seek outcomes on which people with varying views can agree." Fundamentalists believe the Constitution must be interpreted according to "original understanding," or precisely what was meant at the time of ratification. "In the abstract, fundamentalism appears both principled and neutral. But too much of the time, fundamentalists offer an unmistakably partisan vision of the Constitution," he asserts. Though he acknowledges that fundamentalism can sometimes be reasonable, the risks of abuse are too great, leading him to conclude that the approach is "destructive and pernicious" because it leads to less freedom for Americans. In practice, for instance, it could ban the sale of contraceptives, invalidate most environmental regulations, allow discrimination on the basis of race and sex, allow states to establish official churches, and overturn even modest gun control laws.

Though they claim a devotion to history, Sunstein believes fundamentalists are "seeking to produce a federal judiciary that operates as an arm of the political branches." In making this point, Sunstein shows how "judicial activism" by extreme conservative judges has been on the rise since the Reagan administration, moving the Supreme Court hard to the right in the process. He discusses the implications of this shift on issues such as the right to privacy, marriage, affirmative action, national security, the separation of powers, gun control, and religion in public life, among others. In Radicals in Robes, Sunstein skillfully outlines complex constitutional issues in clear language, making this a useful and thought-provoking book for lay readers and legal experts alike. --Shawn Carkonen

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Advance Praise for Radicals in Robes

"Radicals in Robes explains why it is important to prevent the right-wing takeover of the federal judiciary. Cass Sunstein embeds his argument within a more general theory of judicial 'minimalism' that would limit the further politicization of judicial appointments. It is an important argument, and he presents it well." -- Sanford Levinson, author of Wrestling with Diversity

"In an angry age too easily seduced by partisan aggressiveness and simple-minded slogans, Cass R. Sunstein, one of our country's finest legal scholars, argues for a constitutional law based on common sense, patience, modesty, and restraint. These are virtues we need now more than ever." -- Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School, author of The Laws of Change

"This book clarifies the stakes in current struggles over the role of courts in American democracy. For all those seeking a path between the extremes of old judicial liberalism and the new 'fundamentalist' counterrevolution, Cass R. Sunstein offers one here, and he does so with the energy, clarity, and scholarly commitment for which he has become so widely known." -- Richard Pildes, Sudler Family Professor of Constitutional Law, NYU School of Law

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  • PublisherBasic Books
  • Publication date2005
  • ISBN 10 0465083269
  • ISBN 13 9780465083268
  • BindingHardcover
  • Edition number1
  • Number of pages304
  • Rating

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