By Cass R. Sunstein, Princeton University Press, Princeton, N.J. 225 pages, $27.95
Cass Sunstein is difficult to keep up with. His biographical page on the Harvard Law School Web page lists six books from the past seven years (one with Spanish, Chinese, and Farsi translations). An Amazon search reveals several more published recently. Westlaw’s journal database includes 229 articles he published, including one last month and 12 last year.
Logorrhea is one thing, quality another. Yet what makes Sunstein unique is that almost everything that he writes merits a careful read, whether it be his complex empirical, quantitative work on psychological bias on jury deliberations, his historically informed reflections on the American tradition of republicanism, or his engaging popular writing for The New Republic. He has written on environmental law, administrative law, discrimination, national security, free speech . . . the list goes on.
Moreover, Sunstein has a knack for identifying the operative kernel of complex ideas in a way that allows the reader to see how an unfamiliar concept links seemingly disparate problems. Most famously, Sunstein advocated judicial minimalism as an ideal for U.S. Supreme Court justices; proposed “incompletely theorized agreements” to allow persons with reasonably different political commitments to converge; and endorsed “liberal paternalism” whereby government should nudge people in subtle ways to help them do the right thing. Whether or not you ultimately agree with these ideas, it is hard not to be influenced by them.
The idea less proposed than examined in his most recent book is that “many minds” can be better than one (judicial) head. While James Surowiecki’s book “The Wisdom of Crowds” introduced this idea in general terms, Sunstein traces the “many minds” argument back to Nicholas de Caritat, Marquis de Condorcet, an 18th-century French mathematician. According to a proof developed by Condorcet called the Jury Theorem, provided certain conditions are met, the probability that a group will get the correct answer to a question will approach 100 percent as that group grows larger. The Jury Theorem thus suggests that in terms of reaching a “correct” answer – provided that the question being asked is one that admits to right and wrong answers – groups do better than individuals under certain conditions. Stated in more technical terms, groups have an epistemic advantage over individuals.
The Jury Theorem is of considerable interest for constitutional designers and lawyers. Currently, we rely on a coterie of nine justices to decide what the law is in both constitutional and (until Congress intervenes) statutory debates. Perhaps that small group should defer to the judgments of larger groups – in the form of traditions (which might embody the accrued wisdom of large groups over time); popular, democratic judgments; or the consensus of other nations.
Sunstein unpacks the Jury Theorem and then applies it to each of these areas – tradition, public opinion and other nations – in turn. The most extended, and most generally relevant discussion considers the function of tradition as a source of meaning in constitutional law. Drawing on Condorcet’s contemporary Edward Burke, who championed the English common law over legislation, Sunstein coins the phrase “Burkean minimalism.” He uses this to describe an incrementalist approach to constitutional adjudication that pays substantial regard to “traditions.”
Sunstein is unhelpfully fuzzy about exactly what constitutes a tradition. (It appears, for example, the people need not be involved; governmental practice alone can create a tradition inspiring due judicial respect in a Burkean minimalism). But by giving Justices Felix Frankfurter and Sandra Day O’Connor this label, he gives some more substance to his notion. Having set forth his basic idea, Sunstein queries whether the conditions for the Jury Theorem have been met in different areas of the law, such as Equal Protection and Substantive Due Process, in order to assess whether the Frankfurters and the O’Connors of the bench go astray when they rely on the accumulated wisdom of others.
Sunstein’s view of the Constitution is relevant quite apart from its academic value. President Barack Obama recently appointed Sunstein to head the White House Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA). Established in 1980, OIRA is tasked under Executive Order 12866 with reviewing, assessing and either authorizing or rejecting most federal regulatory action. It is, therefore, a consequential position in which Sunstein’s views about administrative law and cost-benefit analysis will be salient. “A Constitution of Many Minds” casts little light on those matters except for its emphasis on the humility of the individual decision-maker against the aggregated wisdom of groups.
Sunstein, however, is also a plausible Supreme Court candidate. (My own, utterly unfounded, speculation, is that former Harvard Law dean Elena Kagan, Obama’s pick for solicitor general, would get any first seat that opens up; Sunstein has a reasonable shot at a second seat the basis of being one of the finest and most articulate constitutional scholars of his generation). In this light, the book merits some careful reading.
Perhaps predictably for a proponent of judicial minimalism, Sunstein does not try to clarify where he falls in relation to Burkean minimalism. But his discussions suggests he is committed to a liberal, relatively aggressive view of the Equal Protection Clause (at least on gender and race), while finding much room for deference on matters of national security. His cautious approach to the relevance of foreign law to American judicial decision-making, and his ultimate rejection of the practice, will please conservatives even though citation of foreign law need not always have a conservative or a liberal bias.
Ultimately, Sunstein does not seem, at least temperamentally, a Burkean minimal. He also discerns a class of justices who he labels “rationalist minimalist.” Justices Ruth Bader Ginsburg and Stephen Breyer, he says, fall into this camp.
‘A Constitution of Many Minds” does not quite come out and say so, but Sunstein too likely is in this category. His relentless attention to new possibilities and openness to innovative developments in fields neighboring the law make him a rationalist as well as a minimalist. On the current Court, though, a dose of rationalism may be no bad thing.
Aziz Huq is associate counsel at the Brennan Center for Justice at New York University School of Law.