Cass Sunstein on Judicial Minimalism, the Supreme Court, and Star Wars | Conversations with Tyler
In a riveting conversation, Cass Sunstein, a prominent legal scholar, and Tyler Cowen explore a variety of topics, including judicial minimalism, the Supreme Court, and the Star Wars saga.
Sunstein provides his unique insights on these subjects, shedding light on his legal theories, his thoughts on nudging, and his interpretation of Star Wars.
Star Wars and the Power of Choice
Sunstein interprets Star Wars as promoting the idea of choice and the potential for redemption.
He cites the line, ‘I am a Jedi, like my father before me,’ as a powerful statement of claiming goodness even in the face of evil.
This interpretation reflects George Lucas’s belief that everyone has the choice to be a hero every day.
I think the arc of history is long, and it bends toward justice. And I think that’s what the Star Wars message is. You know, the dark side is in the human heart. And chaos is very troubling for an individual or for a culture, which can lead you to authoritarian leaders. But the arc of history is on the right side. I believe that. – Cass Sunstein
Star Wars and President Obama
Sunstein shares his experience of discussing Star Wars with President Obama.
He reveals that Obama believes ‘A New Hope’ is the best Star Wars movie, a view that Sunstein strongly disagrees with.
This disagreement might reflect their differing perspectives on hope and change.
Democratic Controls on Nudging
While nudging can be used for both good and bad, it is an inevitable part of life.
The key is to have democratic controls on government nudging and free markets to discipline bad nudging.
This approach helps to minimize the costs of decisions and errors.
Ideal Size of the Supreme Court
Sunstein prefers a larger Supreme Court, arguing that with only three members, there’s too great a risk that it could go off half-cocked.
A larger court would provide a more diffusion of power, ensuring a more balanced and fair judicial system.
Concept of Incompletely Theorized Agreements
Incompletely theorized agreements, as proposed by Sunstein, suggest that it is possible to establish our rights and actions without fully subscribing to a specific understanding of morality’s foundations.
This implies that principles such as free speech can exist without a comprehensive agreement on their philosophical underpinnings.
Understanding Judicial Minimalism
Judicial minimalism, as explained by Sunstein, is about determining how far we can go with a minimal amount of agreement.
It focuses on mundane questions about jurisdiction and authority, avoiding larger questions about morality and human nature unless absolutely necessary.
This approach contrasts with the metaphysical richness of Star Wars.
Political Minimalism through Nudging
In a sharply divided polity, a nudge can be a form of political minimalism.
Both nudging and judicial minimalism are about finding areas of agreement and making decisions that are context-specific.
They reflect a pragmatic and minimalist philosophy that allows for flexibility and adaptability.
Every one of us has a choice of being a hero every single day of our lives. We can treat somebody with dignity and kindness or not. We can be a decent person on that day or not. – George Lucas, as quoted by Cass Sunstein
The Underrated U.S. Constitution
Sunstein argues that the U.S. Constitution is underrated.
It has been the foundation for one of the greatest experiments in democratic self-government in the history of the world, demonstrating its enduring value and relevance.
Star Wars and the Arc of History
Sunstein believes that the arc of history bends towards justice, and that Star Wars ultimately promotes this message.
Despite the portrayal of slavery in the series, Sunstein argues that the series reflects the idea that justice will prevail in the end.
James Joyce and Multiple Interpretations
Sunstein describes ‘Ulysses’ by James Joyce as arguably the richest novel in the last 150 years.
It is full of multiple interpretations that are not just the interpolation of a smart reader but are actually there in the material, reflecting the depth and complexity of Joyce’s work.
Yoda’s Quote and Regulatory Reform
Sunstein argues that Yoda’s quote, ‘Try not.
Do or do not.
There is no try,’ is overrated when applied to regulatory reform.
An experimental attitude is necessary, which Yoda’s words don’t capture.
This perspective highlights the importance of flexibility and adaptability in policy-making.
The Power of Nudging
Nudging, a concept developed by Sunstein and Dick Thaler, is about preserving people’s ultimate freedom to choose their own path while guiding them towards choices that can improve their welfare and longevity.
This approach is informed by behavioral science and economics, which show that humans often rely on heuristics that can lead them astray.
