Order Without Law

Abstract

Under the leadership of Chief Justice William Rehnquist, the Supreme Court of the United States has generally been minimalist, in the sense that it has attempted to say no more than is necessary to decide the case at hand, without venturing anything large or ambitious.' To some extent, the Court's minimalism appears to have been a product of some of the justices' conception of the appropriately limited role of the judiciary in American political life. To some extent, the tendency toward minimalism has been a product of the simple need to assemble a majority vote. If five or more votes are sought, the opinion might well tend in the direction of minimalism, reflecting judgments and commitments that can command agreement from diverse people. To be sure, the Court has been willing, on occasion, to be extremely aggressive. In a number of cases, the Court has asserted its own, highly contestable vision of the Constitution against the democratic process. This aggressive strand has been most evident in a set of decisions involving federalism; it can be found elsewhere as well.' But generally these decisions have been minimalist too. Notwithstanding their aggressiveness, they tend to decide the case at hand, without making many commitments for the future. Sometimes those decisions have even been "subminimalist," in the sense that they have said less