Notwithstanding these differences, it is both important and true that in every important case this term, the minimalists and the visionaries have agreed about the proper result. Many people anticipated that Roberts and Alito would occasionally disappoint their conservative admirers and even the White House. Because they are skeptical of large movements and general theories, and attentive to details, minimalists do tend to surprise both their admirers and their critics.
To date, however, Alito and Roberts have surprised no one. Careful and lawyerly, and focused on the particular problem at hand, they reject huge changes in favor of small steps. But almost all of their small steps are going in the same direction....
In short, we will soon see whether the minimalists and the visionaries differ on their preferred destination, or only on the speed with which they try to get there.
Sunstein has a proprietary interest in this "minimalist" stuff. I can't quite tell if he is taken in by Roberts' and Alito's shared tendency to avoid the "O" word (that's "overrule", Ann, not vagina) while gutting established precedents, or (he thinks) shrewdly stroking their, uh, vanity (maybe Prof. Althouse has me there), and winning their continuing affection, by spewing such unwarranted praise.
Methinks any apparent "moderation" of the "minimalists" is largely an illusion caused by the juxtaposition of their formalist "careful and lawyerly" (Cass, have you NO shame?) noises with the over-the-top bombthrowing rhetoric increasingly employed by Scalia and Thomas. Kind of like Apple hiring a model with large hands to make the iPhone look smaller.
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