Discuss Ch9Part6 here
The New Judicial Minimalism and Inter-branch Colloquy - Ridgway

There has been some interesting work regarding the following proposition:

"The second response is more active: the court finds a way to articulate constitutional values that were not present at the founding. The courts help spur a conversation about these fundamental values—or at least add their voice to this conversation—to focus a debate that may ultimately be resolved elsewhere."

The critical question is how courts should venture into this kind of contested discourse while maintaining fidelity to role. To broker these competing interests, Alexander Bickel’s seminal work recommended a kind of procedural minimalism: use cert and standing to dodge some cases, but show little restraint when it actually decides a case so as not to create substantively minimal precedent (or as Gerald Gunther chided, “a 100 percent insistence on principle, 20 percent of the time”). The problem with this method is the legislative atrophy created by aggressive judicial review (and conversely, legislative inadequacy when it’s solely responsible for preserving constitutional values).

Nevertheless, Bickel’s point remains--substantive minimalism creates precedential limitations we would not prefer. The response from Cass Sunstein and other members of the so-called “New Minimalism Movement” comports more with Lessig’s goal that the judiciary “spur the conversation.” Rather than face a controversial constitutional question head-on, the Court should interpret or invalidate legislative decisions in ways that encourage the political branches to rethink them by, for example, striking down for vagueness, demanding a clear statement, using balancing tests to frame the debate for the legislature, using dicta to serve as “judicial advicegiving” (or as Pete mentioned in class, the “provisional adjudication” that Michael Dorf advocates). This emphasis on inter-branch colloquy seems especially beneficial where the so-called latent ambiguities preclude direct translation.

If you’re interested in including more on this topic, look at Christopher J. Peters & Neal Devins, Alexander Bickel and the New Judicial Minimalism, in THE JUDICIARY AND AMERICAN DEMOCRACY (Kenneth D. Ward & Cecilia R. Castillo, eds., 2005)