Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Providing substantive guidance on how courts should address constitutional questions, judicial minimalism instructs that courts should not issue rulings “[in] broader [terms] than [are] required by the precise facts to which [the ruling] is to be applied” 1 or “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” 2 Instead, courts should limit their rulings to the facts of the instant case and avoid establishing broad precedents. Courts can use judicial minimalism to forestall ruling on politically sensitive issues, thereby allowing the elected legislature to craft a political resolution of the question.3 In addition, by drafting opinions narrowly, Justices may find it easier to build consensus in the Court by reducing the scope of issues to which they must agree.

When employing judicial minimalism, courts frequently pass over questions of constitutional import to focus more narrowly on issues specific to the case. For instance, in Liverpool, N.Y. & Philadelphia Steamship Co. v. Commissioners on Emigration,4 the Court was asked whether Congress could (1) ratify state laws that were previously struck down as unconstitutional state regulation of foreign commerce, or (2) bar claims for damages that the unconstitutional state laws caused.5 Noting that the case presented questions as to “the constitutionality of the act of congress” that were “of very grave importance,” 6 the Court held it was “constrained to reverse the judgment, without deciding any of them.” 7 In making this decision, the Court observed it was bound by two rules: “one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is applied.” 8 Focusing on the case’s record, the Court found it incomplete and remanded the case for a new trial to determine the missing facts.9

Later, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Court passed over complex constitutional issues to resolve the case on grounds specific to its facts. In Masterpiece Cakeshop, the question before the Supreme Court was whether a Colorado civil rights statute, which protected gay persons from being discriminated against when they were trying to procure goods and services, violated the First Amendment by requiring a baker to create a wedding cake for a same-sex couple. The baker viewed creating the cake to be an expressive artistic statement, and the civil rights statute as compelling him to use his artistry to express a message endorsing same-sex marriage despite his “sincere religious beliefs and convictions” to the contrary.10 Recognizing the conundrum presented by the case, the Court commented that while “religious and philosophical objections [to same-sex marriage] are protected, it is a general rule that such objections do not allow business owners . . . to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” 11 The Court, however, also took note of the baker’s view that requiring him to create the cake amounted to forcing him to make an artistic expressive statement contrary to his religious beliefs.

In a decision written by Justice Anthony Kennedy, the Court adopted a judicial minimalist approach. Instead of addressing the constitutional questions raised by the interplay of the Colorado civil rights statute and the baker’s First Amendment free exercise and free speech rights, the Court found that, during hearings before the Colorado Civil Rights Commission, several commissioners denigrated the baker’s religious beliefs, thereby violating his free exercise rights. Finding that “the Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” the Court ruled in favor of the baker.12 The Court emphasized, however, the limited application of Masterpiece Cakeshop to other cases, stating:

A variation on the judicial minimalist approach is the practice of “assuming but not deciding” a constitutional issue. In these decisions, the Court foregoes resolving an underlying constitutional question, in favor of treating the constitutional question as resolved for the limited purpose of deciding the instant case. Such an approach enables the Court to resolve the dispute at issue without determining the underlying constitutional question. For instance, in National Aeronautics & Space Administration (NASA) v. Nelson, the Court chose to “assume, without deciding,” that the Constitution protects informational privacy.14 Based on this assumption, the Court found that NASA’s background checks did not violate the “assumed” constitutionally protected right to informational privacy. While “assuming but not deciding” allows the Court to resolve time-sensitive disputes while deferring resolution of thorny or politically sensitive constitutional questions, some have characterized the approach as disingenuous. Arguing that the NASA decision “makes no sense,” Justice Antonin Scalia, while concurring in the judgment, wrote: “The Court decides that the Government did not violate the right to informational privacy without deciding whether there is a right to informational privacy . . . .” 15

In summary, judicial minimalism enables the Court to develop binding precedent on a legal issue slowly, thereby providing opportunity for the government’s Legislative and Executive Branches to resolve contested constitutional issues through the political process. Judicial minimalism further alleviates the counter-majoritarian difficulty because the resulting decisions are unlikely to have far-reaching precedential impacts, while still resolving the case before the court. Judicial minimalism, however, may lead to decisions that provide limited guidance to future courts, to the Legislative and Executive Branches, and to the public as to what the Constitution permits.

Footnotes

1

Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (quoting Liverpool, N.Y. & Phila. S.S. Co. v. Comm’rs of Emigration, 113 U.S. 33, 39 (1885)).

2

Liverpool, N.Y. & Phila. S.S. Co., 113 U.S. at 39.

3

See, e.g., Shelby Cnty. v. Holder, 570 U.S. 529 (2013) (limiting ruling to Voting Rights Act (VRA) Section 4 and suggesting that Congress revisit related VRA Section 5).

4

Liverpool, 113 U.S. 33.

5

Id. at 36.

6

Id.

7

Id.

8

Id. Justice Stanley Matthews also cited ripeness as a reason to remand the case. Id. at 39.

9

Id.

10

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, No. 16-111, slip op. at 1–2 (U.S. June 4, 2018).

11

Id. at 9.

12

Id. at 18. Discussing the actions of the commissioners, the Court stated: “The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires.” Id. The Court also noted that the Commission’s treatment of the baker differed from its treatment of other bakers who had refused to prepare cakes with messages that they found offensive. The Court stated: “The Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same.” Id.

13

Id. The Court further emphasized the ruling’s narrowness, stating: “Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commissioners’ actions here violated the Free Exercise Clause; and its order must be set aside.” Id. at 3. See also Scheutte v. Coal. to Defend Affirmative Action, 572 U.S 291, 314 (2014) (ruling on Michigan referendum, rather than broader racial issues); Harris v. Quinn, 573 U.S. 616, 656 (2014) (refusing to extend Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)).

14

National Aeronautics & Space Admin. v. Nelson, 562 U.S, 134, 138 (2011) (Alito, J.) ( “We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon. We hold, however, that the challenged portions of the Government’s background check do not violate this right in the present case.” ).

15

Id. at 165 (Scalia, J., concurring) (emphasis retained). Justice Antonin Scalia further noted: “I fail to see the minimalist virtues in delivering a lengthy opinon analyzing that right while coyly noting that the right is ‘assumed’ rather than ‘decided.’” Id.