Our Constitutional Personae

Will the Supreme Court be a critical campaign issue in 2016? Already this year the high court is considering cases dealing with abortion rights, executive actions on immigration, affirmative action in higher education, voting rights and a claim for more than $1.75 billion in damages sought by American victims of Iran-sponsored terrorism. The volume of prominent cases is itself newsworthy. More recently, the justices themselves have become news. In an op-ed published in the Boston Globe last week, Hillary Clinton noted that three of the current justices will be more than 80 years old on Election Day, and that “the next president could easily appoint more than one justice” to the bench. Republican presidential candidate Ted Cruz has been even more forceful about his intention to capitalize on potential Court vacancies, telling Bloomberg Politics that he will “spend the capital to ensure that every Supreme Court nominee that I put on the court is a principled judicial conservative.” While the American public continues to weigh the issues, the presidential candidates have made the Supreme Court part of the political debate.

In his new book “Constitutional Personae” (Oxford University Press, 2015), American legal scholar Cass Sunstein offers readers a character-centric approach to understanding the Supreme Court. The four Personae – Hero, Soldier, Minimalist and Mute – have been present throughout the history of our judiciary. Generally, a Persona emerges in response to a specific issue or constitutional question as a “reflection of a judge’s actual thinking or instead as a judge’s preferred self-presentation,” Sunstein writes. The Personae are not personalities or representatives for different theories of constitutional interpretation. Rather, they are illustrations of the judicial behaviors that “separate judges as well as those who comment on their work.”

Heroes, whether ideologically conservative or liberal, are big and bold. John Marshall was the original Hero, and Chief Justice Earl Warren became an icon of judicial heroism by presiding over a Court that, among other decisions, struck down racial segregation in schools and required that authorities give the Miranda warnings to criminal suspects. The opposites of Heroes are Soldiers. Civil War veteran Oliver Wendell Holmes is perhaps the archetypal Soldier—dutiful, deferential to the political process and uncomfortable with the Hero’s aggressive engagement in social reform. Minimalists are a compromise of sorts. They share the Soldier’s humility and respect for tradition, but they also believe in taking small steps to reform institutions or revise past decisions. Chief Justice John Roberts and Justice Ruth Bader Ginsburg often assume Minimalist Personae. Sunstein himself favors what he calls Burkean Minimalism, which stresses the defense of tradition against an individual justice's moral or political reasoning. Mutes, who comprise a minority among Supreme Court justices, practice “constitutional avoidance”—they prefer to avoid high profile, divisive questions by not speaking at all.

“Constitutional Personae” is clearly written, consistently insightful and highly readable. Constitutional law professor Stephen Wermiel, writing at SCOTUSblog, said Sunstein offers “a fresh way of thinking about the Court.” Below is an edited transcript of RealClearBooks’ recent conversation with Cass Sunstein.

Q: How did you come to know the four Constitutional Personae?  

From several decades of thinking about constitutional law, I noticed that Heroes, Soldiers, Minimalists, and Mutes arise in every era. You can find them in the Civil War, in the 1920s, during the New Deal, during the 1960s, during the 1980s, and certainly now. They seem to organize debates that are built into the fabric of our society. Even when they sound new, their arguments with each other are very, very familiar. They’re here to stay.

Q: Belgian professor François Ost’s three models of modern judging, called Jupiter, Hercules and Hermes, bear only partial resemblance to the Constitutional Personae described in your book. How uniquely American are the Soldier, Hero, Minimalist and Mute judicial character types?  

Not at all uniquely American. They’re universal! Just to mention a few: You can find them in Canada, Germany, South Africa, Colombia and Israel. I was recently in Taiwan, speaking to the Constitutional Court there, and the Personae were entirely familiar to the justices.

Q: You make a convincing argument for your preferred Persona, Minimalist. How has your personal philosophy on constitutional interpretation (and the Personae) evolved during your career?

Well, I clerked for Thurgood Marshall, who was a Hero, and clerks tend to build up some sympathy for their bosses. I greatly admired him, even though I was to his right – and in the early 1980s, I think I was more favorably disposed to the Hero than I now am. For many years, I taught some writing by [Edmund Burke] and, every year, I liked Burke better. He’s not a Hero, but he’s definitely a hero – probably the hero of the book. Sure, there’s a lot to say against him. But still.

Q: Hillary Clinton recently wrote in the Boston Globe that if elected president she will “appoint justices who will protect the constitutional principles of liberty and equality for all.” Republican presidential candidate Ted Cruz has called the Court “fundamentally illegitimate.” You suggest the Personae are reflections of how judges understand their jobs rather than judicial politics. Still, many Americans view Supreme Court justices as politically partisan. Do the Personae actually transcend politics?

Definitely. There are left-wing heroes (Marshall, Brennan) and right-wing Heroes (Thomas, Sutherland). There are liberal minimalists (Ginsburg, most of the time) and conservative minimalists (O’Connor and often Roberts). You can adopt or choose a Persona regardless of your ideological convictions.

Q: How do you hope readers use their understanding of the four Constitutional Personae?

I hope that they will come to constitutional debates, and maybe politics more generally, with a much better understanding of the underlying arguments and options. A lot of people like Heroes, but they don’t quite know that that’s what they like, and that there are reasonable alternatives. A lot of people are drawn to Soldiers or Minimalists, but the categories aren’t clear in their heads – and once they are, they might shift. As in romance, people tend to have an immediate attraction to certain types. It’s good to be able to identify your type!