Home Amy Coney Barrett GERBER: The Misguided ‘Minimalism’ Of Donald Trump’s SCOTUS Appointees

GERBER: The Misguided ‘Minimalism’ Of Donald Trump’s SCOTUS Appointees


Editor’s note: We endeavor to bring you the top voices on current events representing a range of perspectives. Below is a column arguing that former President Donald Trump’s judicial appointments have been a disappointment. You can find a counterpoint here, where Article III Project President Mike Davis  argues Trump’s appointments have been an important success for his presidency.

Donald Trump is not happy with at least two of the three justices he nominated to the U.S. Supreme Court. In an interview late last month with Real America’s Voice, the former president said he was “very disappointed” with a number of decisions Justices Brett M. Kavanaugh and Amy Coney Barrett issued during the recently completed term.

Trump is particularly disappointed in Kavanaugh. Trump told Michael Wolff during an interview for Wolff’s forthcoming book Landslide: The Final Days of the Trump Presidency that Kavanaugh “hasn’t had the courage you need to be a great justice.”

Other notable conservatives are likewise disappointed in Kavanaugh and Barrett. Law professor Josh Blackman, for example, wrote in Newsweek that he “pray[s] that Justices Kavanaugh and Barrett” will do a better job in the future of resisting Chief Justice John Roberts’s “siren song” of “striv[ing] to achieve moderation for the sake of moderation — regardless of any actual governing legal principles.”

To make the point in the language of judicial decision-making theory, what former Trump and Professor Blackman are saying is that an authentic conservative Supreme Court justice is a judicial “maximalist” rather than a judicial “minimalist.” Judicial minimalists borrow from the incremental approach to decision-making promoted by eighteenth-century Irish statesman, economist and philosopher Edmund Burke. They endeavor to limit the Court to the narrow questions posed by a particular case and discourage it from handing down broad rulings with sweeping social consequences. They insist that the broad questions — for example, the legality of abortion — should be left for the people to decide through the process of what liberal law professor Cass Sunstein calls “deliberative democracy.” In short, a conservative judicial minimalist prefers to chip away on, say, abortion precedents rather than proclaim a lasting ban through a constitutional ruling.

The judicial “maximalism” of the Court’s other three conservatives — Clarence Thomas, Samuel Alito, and Neil Gorsuch — stands in marked contrast to the judicial minimalism of Roberts, Kavanaugh, and Barrett. (The Court’s three liberals include minimalists Stephen Breyer and Elena Kagan, and maximalist Sonia Sotomayor.) A judicial maximalist is a jurist who urges the Court to provide broad judgments and clear guidance. This does not sound so bad, does it? What is wrong with clear guidance? It sounds bad to Professor Sunstein, though. In an interview published in Legal Times shortly after his major book about judicial minimalism, One Case at a Time, went to press Sunstein singled out Justice Thomas for his “astonishing” 1996 concurring opinion in 44 Liquormart, Inc. v. Rhode Island, an opinion in which the Court’s longest-tenured justice maintained that commercial speech should be treated the same as noncommercial speech. Liberals, of course, disdain commercial speech. Burt Neuborne, a law professor and the former executive director of the American Civil Liberties Union, for one, complained after the Court’s decision in 44 Liquormart that the First Amendment right to free speech — for decades a favorite among liberals — is now “the favorite argument for corporations and advertisers.”

The maximalist-minimalist divide was so pronounced during the Court’s most recent term that Justices Thomas, Alito and Gorsuch each criticized Justices Kavanaugh and Barrett for their minimalism. Thomas wrote in a dissent from the Court’s denial of certiorari in a high-profile Pennsylvania case about whether courts can modify the rules governing elections that the justices had “an ideal opportunity” to resolve this issue “before the next election cycle.” Kavanaugh’s and Barrett’s “refusal to do so,” Thomas insisted, was “inexplicable,” “befuddling” and “baffling.” Thomas complained, “one wonders what this Court waits for.”

In a case involving the alleged use of excessive force by the police, the conservative judicial minimalists on the Court asked the lower court to reconsider whether it followed the correct legal standard. Justice Alito thundered in a dissent joined by Justices Thomas and Gorsuch that Justices Kavanaugh and Barrett were “unwilling to … bear[] the criticism that” denying the appeal “would inevitably elicit.”

And in what Professor Blackman calls “the most unsatisfying case this term,” the Court in Fulton v. City of Philadelphia unanimously held that Philadelphia’s refusal to contract with Catholic Social Services for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment. However, Kavanaugh and Barrett joined with the majority in declining, at least for the moment, to overrule the Court’s 1990 Employment Division v. Smith precedent that held that government can burden religion so long as the law is applied neutrally. Although Smith was authored by Justice Antonin Scalia, the late icon of the conservative legal movement, conservatives long have called for the case’s overruling. In a concurring opinion joined by Justices Thomas and Alito, Justice Gorsuch insisted that “these cases will keep coming until the Court musters the fortitude to supply an answer.”

In closing, former President Trump, Professor Blackman, and Justices Thomas, Alito and Gorsuch are correct to be disappointed in the performance of Justices Kavanaugh and Barrett. The Court issued only 67 decisions in the 2020-2021 term, and the justices had plenty of time to figure out a way to climb down from the fence. Moreover, almost certainly the most important decision in the Court’s history, 1954’s Brown v. Board of Education, was a maximalist decision that forever changed the United States for the better by declaring in broad and clear language that “separate but equal” educational facilities for racial minorities are “inherently unequal” and that they violate the Equal Protection Clause of the Fourteenth Amendment.

Scott Douglas Gerber is a law professor at Ohio Northern University and an associated scholar at Brown University’s Political Theory Project. His nine books include “A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787” (Oxford University Press).

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