At Liberty Law Blog, John McGinnis: Against Judicial Minimalism. In conclusion:
Minimalism thus maximizes judicial discretion over time. This kind of discretion appeals both to those who believe the Court should a policymaking institution rather than a law-interpreting one or to those who simply do not like its current results. Thus, if one believe that the Constitution just furnishes a set of textual footholds for judges to make wise decisions case by case, minimalism is congenial precisely because it eliminates the constraint of principles that reach beyond a single case. If one believes that the current Court is out of step with one’s ideological preferences, minimalism minimizes the constraints of past precedent on future justices.
But for those who believe that Court distinguishes itself from the political branches precisely by the application of neutral principles that transcend policy preferences, minimalism is not a form of jurisprudence, but a marker of its absence.
Also, no one believes in minimalism when they have five solid votes.
RELATED: Also from Professor McGinnis, Elite Rather than Popular Opinion Influences the Court. (And I guess some people are surprised by this.)
Posted at 6:00 AM