Cass Sunstein

Cass R. Sunstein is the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago Law School and the author of more than a dozen books, including After the Rights Revolution, Designing Democracy and most recently, The Cost-Benefit State.

Recent Articles

The Myth of the Balanced Court

In 1980, John Paul Stevens stood at the center of the Supreme Court. Today, he is its most left-wing member -- and he hasn't changed.

It is how the mainstream media have taught the public to think about decisions by the current Supreme Court. And it is a conceptual scheme that makes it utterly impossible to understand either the Court's current makeup or its recent history. The Myth of Balance Between Left and Right holds that the Court has a "liberal wing," consisting of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, and a "conservative wing," consisting of Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito, and Clarence Thomas. Justice Anthony Kennedy is the swing vote, the "moderate." It should be clear, right off the bat, that something is fishy about this picture. Cautious on the lower courts, Ginsburg and Breyer were prescreened by and fully acceptable to Republicans on the Senate Judiciary Committee. Both their votes and their opinions have been far more moderate than those of the great liberal visionaries of the Court's past, such as William O. Douglas...

The Problem with Predictability

Right-wing activists have made it all too clear that they want President George W. Bush to appoint Supreme Court justices who are "predictable." The longtime refrain of "No more David Souters" has been joined by "No more Anthony Kennedys." Some groups demand a nominee who does not believe that the Constitution protects abortion or gay rights or even privacy; others insist that the next justice should reliably protect economic interests of which they approve. The activists, and according to some reports the White House itself, do not want surprises. In the law, predictability is usually important. People need to know the rules, and they cannot plan their lives unless they know the law in advance. We expect predictability from our trial court judges, who are meant to follow the law far more than to make it. And of course we want to be able to predict that Supreme Court justices will not ignore the Constitution, or refuse to protect free speech, or permit racial segregation. But in the...

Economic Security: A Human Right

Are social and economic rights foreign to American traditions? Are they inconsistent with our laissez-faire freedom-loving culture? Consider a defining moment in our nation's history, when national security was also threatened and when an American president argued that freedom itself required social and economic rights. In our own day, we should be paying close attention to his arguments. On January 11, 1944, the United States was involved in its longest conflict since the Civil War. The war effort was going well. At noon, America's optimistic, aging, wheelchair-bound president, Franklin Delano Roosevelt, sent the text of his State of the Union address to Congress. Ill with a cold, Roosevelt did not make the customary trip to Capitol Hill to appear in person. Instead, he spoke to the nation via radio -- the first and only time a State of the Union address was also a “fireside chat.” Roosevelt began by emphasizing that “the one supreme objective for the future” -- for all nations --...

The Warrior's Tale

The Clinton Wars By Sidney Blumenthal, Farrar Straus & Giroux, 822 pages, $30.00 Running for the Senate in the summer of 2000, Hillary Clinton said she was a "Rorschach test." In fact, both of the Clintons continue to serve as a kind of national Rorschach. Was Bill Clinton an extraordinarily successful president, responsible for remarkable economic growth and renewed attention to the plight of the least fortunate members of society? Or was he Slick Willie, a seducer and a liar, a disgrace to his office? Is Hillary Clinton an accomplished woman who has spent much of her professional life trying to help children? Or is she (in the words of conservative pundit Laura Ingraham) "a Machiavellian who craves power so much she'll do anything to keep it"? Sidney Blumenthal served in the White House from August 1997 through January 2001 and was a close adviser to both Clintons. In Blumenthal's account, President Clinton developed a new model of progressive governance, one that accepted the...

The Right-Wing Assault

Since the election of President Reagan, a disciplined, carefully orchestrated and quite self-conscious effort by high-level Republican officials in the White House and the Senate has radically transformed the federal judiciary. For more than two decades, Republican leaders have had a clear agenda for the nation's courts: to reduce the powers of the federal government; to scale back the rights of those accused of crime; to strike down affirmative-action programs and campaign-finance laws; to diminish privacy rights, including the right to abortion; and to protect commercial interests, including commercial advertisers, from government regulation. They have sought judicial candidates who would interpret the Constitution and other federal statutes in a way that would promote this agenda. And their nominees have been appointed to the bench. To a degree that has been insufficiently appreciated, and is in some ways barely believable, the contemporary federal courts are fundamentally...

Pages