Judicial minimalism is an account of how judges should, and sometimes do, decide the cases before them. Generally speaking, minimalist judges prefer to resolve difficult cases in a modest way. They favor narrow decisions, confined to the facts of the case; and they favor shallow decisions, avoiding any large account of the problem at hand and how it should be resolved. “Instead of adopting theories,” Cass Sunstein says, minimalist judges “decide cases.” The central claim of this Article is that minimalism does not “spur” or “promote” democracy, as Sunstein has long argued it does. Sunstein’s basic idea is that a court can promote democratic activity by using certain procedures or doctrines to issue minimalist decisions. For example, a court could use the non-delegation doctrine to require that a matter be addressed by legislation rather than simply by executive discretion. Requiring the legislature to address the matter promotes democratic activity. My argument is that minimalism does not promote democracy because minimalist decisions lack the depth necessary to promote democratic activity. Like Sunstein, I endorse a view of democracy that is based on deliberation. Democracy is, at its heart, a procedure for exercising state power based on reasoning between free and equal citizens. Minimalist decisions do not promote democratic deliberation because they fail to give those of a different viewpoint a reason to change their minds. Whereas minimalism advocates “shallow” decisions, changing minds often requires “deep” arguments.
Matthew Steilen, Minimalism and Deliberative Democracy: A Closer Look at the Virtues of “Shallowness”, 33 SEATTLE U. L. REV. 391 (2010).