As students in my courses this semester know, the United States Supreme Court is operating with one less Justice than their normal number of nine due to the recent death of Justice Antonin Scalia and the Senate's refusal to give President Obama's nominee for the vacancy a vote. While many of the President's supporters have criticized this development, one former Obama Administration official is actually celebrating the decisions this short-handed Court has made over the past few months. Law Professor Cass Sunstein argues that the recent decisions by the Court have shown a great deal of judicial restraint, which he argues is good for two reasons:
The first is that decisions should be narrow rather than wide. If the court is asked to strike down an affirmative-action program, it should focus on that program, not on affirmative action in general. This holds as well for abortion, national-security surveillance and presidential powers: Decide the case at hand and leave other problems for other occasions.
The second idea is that decisions should be shallow rather than deep. In a free-speech case, for example, minimalists believe that the court should avoid the most controversial claims about the foundations of liberty. Instead it should seek rulings that can command support from people who have different views on the deepest questions. The justices might agree that the government may not regulate speech unless it poses a clear and present danger, but that view could be rooted in distrust of public officials, respect for human dignity or belief in the marketplace of ideas—and there is no need for them to pick a preferred theoretical foundation.
The idea of judicial restraint is one that German students should probably understand, as the German Constitutional Court is sometimes also criticized for failing to exercise so-called " richterliche Selbstbeschränkung."
A 2014 SZ article provides some recent examples.
