ABSTRACT
Some scholars have advanced a theory of “judicial minimalism,” which holds that judges should decide cases on the narrowest possible grounds. To its adherents, minimalism threads the needle between concerns about unchecked political branches and concerns about unaccountable judges making policy decisions. When examined more carefully, however, the democratic virtues of minimalism are very dubious. Even in theory, it is highly questionable that minimalism makes judicial power more democratic. And examining it in practice as used by the Rehnquist and Roberts Courts in the American context, we find that formal minimalism bears little relationship to judicial modesty, and in addition leads to a troubling lack of transparency. Democratic values are best served, we argue, when courts are candid about what they are doing.
