Measuring Meta-Doctrine: An Empirical Assessment of Judicial Minimalism in the Supreme Court

One of the most influential recent theories of Supreme Court decision-making is Cass Sunstein's "judicial minimalism." Sunstein argues that a majority of the justices of the Rehnquist Court were "minimalists," preferring to "leave things undecided" by favoring case-by-case adjudication over ambitious judicial agendas. While many legal scholars have embraced Sunstein's argument, no piece of scholarship has attempted a quantitative empirical test of the theory. This paper develops an empirical measure for judicial minimalism and examines whether minimalism affected the opinion writing and voting of the justices in the Rehnquist and Roberts Courts. The empirical analysis supports the conclusion that judicial minimalism has a statistically significant effect on the opinions of the justices, providing the first quantitative evidence of "meta-doctrine" in the Supreme Court.