Judging Judicial Minimalism

The Court avoided the issue of partisan gerrymandering yesterday by remanding Gill v. Whitford on standing grounds. A number of commentators have noticed the Court's recent minimalism. Garret Epps asserts that the “Court so far has taken every possible opportunity to avoid important decisions.” Dahlia Lithwick asserts that Court is “now too frightened of public outcry to decide anything.” Howard Wasserman suggests that, because the Court hears so few cases, it should do a better job of selecting cases that provide a vehicle for rulemaking to guide the lower Courts. But, as Eugene Volokh points out, “some, both on the left and on the right, have argued that such narrow decisionmaking, or remand or dismissal on procedural grounds, are often a good idea, and that the Supreme Court should indeed often decide as little as possible.” In my view, judicial minimalism is much more defensible in cases like Masterpiece Cakeshop than in Gill. …

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