Saturday, June 03, 2006

Sunstein on the minimalist position of CJ Roberts

On page B11 of the May 25, 2006 issue of the LA Times is a piece by Cass Sunstein about the minimalist position of CJ Roberts.

Talking of Roberts' speech at Georgetown, Sunstein wrote:

Roberts began by arguing in favor of unanimous or near-unanimous
opinions, which, he said, serve the rule of law by ensuring that the court's
message is not confused by its own internal divisions. He went on to suggest that
such a consensus on the part of the justices would, almost by necessity, lead
to narrow rulings, limited in most situations to the particular issue at hand.

This, in the chief justice's view, is entirely desirable. "If it is
not necessary to decide more to dispose of a case, in my view it is
necessary not to decide more," he said.

Roberts referred, with unmistakable enthusiasm, to Frankfurter's
suggestion that courts should focus on the concrete issue and "not embarrass the
future too much."

What makes Roberts' argument noteworthy is that it takes a side in
one of the deepest and most long-standing divisions in American jurisprudence -- a
division that cuts across the standard ideological lines.

This IPBiz post is a placeholder for a later post. We'll review the minimalist argument as to the "final" outcome in eBay v. MercExchange.


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