Judicial Minimalism and the Double Effect of Rules and Standards

Abstract

The aim in this article is to explore the complicated connections between standards and letting go and between rules and control. Both constitute a central tenet of Justice Roberts’Grahamconcurrence, as well as a central tenet of the minimalist approach which he implicitly adopts. The tension within Roberts’ position is not conclusive. It may depend on the actual way one uses standards. If Roberts consistently uses standardsde factoin a deferential way, and signals that he will not intervene, he may be consistent with the approach. But the tension exists. Standards and minimalism do not always go hand-in-hand. Finally, the article questions the efficacy of minimalism as a workable judicial philosophy. Roberts is, after all, the first Justice who adopted minimalism whole-heartedly. The difficulties with the application of minimalism inGrahamand its inherent tensions revealed through this case raise some doubts as to the possibility that minimalism can move effectively from theory to actual judicial practice.