Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes

Sunstein (Nudge), a law professor and former head of the White House Office of Information and Regulatory Affairs in the Obama administration, has crafted a valuable study of the different approaches that Supreme Court justices take in deciding cases. As the title indicates, he believes there are four such categories: heroes, who use their decisions to effect major changes; soldiers, who follow precedent and historical practice; minimalists, who make incremental changes; and mutes, who avoid addressing major issues. The categories are not rigid; some justices will be minimalists on some cases and soldiers on others, for example. But beyond this useful taxonomy—which is independent of political slant, so the justices responsible for the majority decisions in Bush v. Gore and Brown v. Board of Education are both filed as heroic—Sunstein makes a compelling case as to which persona is most apt for the immense power the Supreme Court wields, namely minimalism, which is informed by the belief that “human beings, and judges in particular have a limited stock of reason,” dictating a sense of humility. Given the significance of recent Supreme Court decisions on such issues as campaign finance, health care coverage, and marriage equality, Sunstein has performed a public service by enabling a better comprehension of how these judgments are reached. (Oct.)