Was Ann Coulter Right? Some Realism About “Minimalism”
AMLR.V5I1.PRESSER.POSTPROOFLAYOUT.0511 9/16/2008 3:21:27 PM Copyright © 2007 Ave Maria Law Review WAS ANN COULTER RIGHT? SOME REALISM ABOUT “MINIMALISM” Stephen B. Presser † INTRODUCTION Ever since the Warren Court rewrote much of the Bill of Rights and the Fourteenth Amendment, there has been a debate within legal academia about the legitimacy of this judicial law making.1 Very little popular attention was paid, at least in the last several decades, to this problem. More recently, however, the issue of the legitimacy of judicial law making has begun to enter the realm of partisan popular debate. This is due to the fact that Republicans controlled the White House for six years and a majority in the Senate for almost all of that time, that they have announced, as it were, a program of picking judges committed to adjudication rather than legislation, and finally, that the Democrats have, just as vigorously, resisted Republican efforts. Cass Sunstein, a professor at the University of Chicago Law School,2 and now a visiting professor at Harvard Law School,3 has written a provocative book purporting to be a popular, yet scholarly critique of the sort of judges President George W. Bush has announced that he would like to appoint. Is Sunstein’s effort an objective undertaking, or is it partisan politics with a thin academic veneer? If Sunstein’s work (and that of others on the Left in the † Raoul Berger Professor of Legal History, Northwestern University School of Law; Professor of Business Law, J. L. Kellogg Graduate School of Management, Northwestern University; Legal Affairs Editor, Chronicles: A Magazine of American Culture.
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