Review Essay: Radicals in Robes


This essay reviews and critiques Cass Sunstein’s new book entitled Radicals in Robes. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an alternative rationale for the same approach, one that might be more plausible to those who do not already agree with Sunstein’s political views.


Administrative Law | Civil Rights and Discrimination | Constitutional Law | Courts | Economics | Government Contracts | Judges | Jurisprudence | Law | Law and Economics | Law and Politics | Law and Society | Public Law and Legal Theory | Religion Law

Date of this Version

May 2006