The Argument For Minimalism

Mar 26 2013 @ 12:56pm

Here’s a succinct and simple case from Cass Sunstein for SCOTUS going small:

In its 1971 decision in Reed v. Reed — its first serious effort to engage the problem of sex discrimination — the court took the path of minimalism. Striking down an odd Iowa law that gave a preference to men over women as administrators of estates, the court declined to issue a broad pronouncement that would immediately threaten all discrimination on the basis of sex.

Instead it began a long series of case-by-case rulings — accompanying, but not pre-empting, democratic judgments — that ultimately produced strong safeguards against such discrimination.

With respect to same-sex marriage, the court might be able to adopt a similar approach. For example, the Justice Department has sketched some ways for the court to rule relatively narrowly, striking down the laws in question while avoiding the broadest pronouncement about marriage equality.