I think Cass Sunstein is one of the best legal writers living today. He helped me understand why liberty costs money - for it requires theoretically non-partisan institutions such as the judiciary, the police, firefighters, bureaucrats, and regulators to operate fairly. He's been penned with the term "liberal" but he's clearly only a liberal in that he believes in a just and free society.
Mr Sunstein argues that both perfectionists and fundamentalists are mistaken in the same way, advocating a form of judicial activism that is illegitimate, prone to error and anti-democratic. But fundamentalists are his real target. Warren-style liberal perfectionists hardly exist on the federal bench any longer.
However, fundamentalists, he argues, are a genuine threat to good governance because they have so little respect for the Supreme Court's own precedents or for Congress. If they ever obtain a court majority, he fears, they would sweep away many effective laws, on everything from civil rights to environmental protection. America's modern regulatory state would be dismantled. Many widely accepted boundaries, such as that between religion and government, could also disappear.
Mr Sunstein may seem alarmist, but most of these positions have been advocated for years by supporters of the "lost constitution". He opposes fundamentalists not only because of the way they want to remake America, but also because he disputes their reading of history. There was no single "original intent" behind the constitution among its drafters or ratifiers. It was a much contested document; and the idea that it can only be applied as those in the 18th century would have interpreted it seems a bizarre idea.
Moreover, through careful analysis, Mr Sunstein shows that
fundamentalists have been wildly inconsistent in applying
constitutional history, referring to it only when it fits their policy
goals. Too often, he says, their interpretation neatly fits only the
agenda of the extreme edges of the Republican Party's right wing rather
than any reasonable view of history. Fundamentalist judges are
"radicals in robes", he claims, not neutral, fair-minded arbiters.
Thus, as Mr Sunstein has written elsewhere, the Senate confirmation hearings should not waste time on seeking Mr Roberts's views on abortion or any other single litmus test, but should instead aim at discovering whether he is one of thesejudicial radicals. Why do such hearings so often degenerate into a political battle? Mr Sunstein's answer is simple: because so much is at stake.