Supreme Court: 9-0 is better than 5-4

The Supreme Court regularly has to choose between issuing narrow rulings and issuing broader ones.

Suppose, for instance, that an alleged enemy combatant, who is also an American citizen, argues that he has a right to a hearing before he can be held as a prisoner by the United States. A minimalist court would be inclined to rule on the combatant's particular claim without saying a word about the president's general power to wage war on terror, and it would remain silent about the rights of foreigners.

Or suppose that an elderly cancer patient is challenging a state ban on physician-assisted suicide. A minimalist court would focus on the specific facts of the case and the law in question and refuse to say anything about whether the Constitution provides a more general right to privacy that might encompass a right to commit suicide.

Or imagine that a rejected white applicant is challenging an affirmative-action program at a particular medical school. A minimalist court might strike down the specific program for some narrow, perceived flaw in its structure without saying whether affirmative action is generally permissible.

Cass R. Sunstein

So Roberts finds himself idealogically aligned with Sandra Day O'Connor. I don't want to be accused of throwing Roberts over after just one speech, though. To be fair, I'm not ready to say I smell a Souter just yet. But there is definitely an air of Kennedy in the air.

The author misrepresented Scalia's position, by the way. He was obviously trying to associate it with judicial activism in the minds of his readers. If a jurist is a strict constructionist, minimalism is a moot issue.