A Judicial Review: Professor Cass Sunstein

By Marc Seltzer; originally published on May 13, 2009 at politicsunlocked.com

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Harvard Professor Cass Sunstein is 54, the same age as Justices Kim Wardlaw and Sonia Sotomayor, profiled here in recent weeks. A longtime Professor at the University of Chicago Law School, where he was a colleague of President Barack Obama, Sunstein is one of the country’s leading legal scholars. He has published widely with particular interest and expertise in environmental issues, information technology, and behavioral economics.

Sunstein is referred to as a liberal, but his political philosophy is not easy to categorize. He would appeal to some conservatives because of his belief that judges should carefully limit their focus to the case at hand, leaving the larger legal rulemaking to legislators. Mr. Sunstein supported the nomination of Bush appointee John Roberts Jr. to the Supreme Court. Roberts had articulated this philosophy of judicial minimalism in his Senate confirmation hearing.

However, when Justice Samuel Alito was nominated by President George W. Bush, Mr. Sunstein wrote a detailed analysis of Alito’s conservative rulings arguing that Alito was a “conservative’s conservative.” The op-ed did not overtly oppose Mr. Alito’s nomination, but it sought to make plain theesssential conservatism of Alito’s positions.

This type of record is something that would not be available for those considering Professor Cass as a nominee to the high court. He has not served as a judge and has no record of judicial decision-making to dissect.

Professor Sunstein left the University of Chicago to join the Harvard Law faculty this academic term, and in January was nominated by the Obama administration to be head of the Office of Information Technology and Regulatory Affairs.

He is extremely creative and forward-thinking. His most recent book Nudge: Improving Decisions about Health, Wealth, and Happiness, which he co-authored with Richard H. Thaler, discusses a framework for moving society’s decisions in the right direction.

Responding to the question, “How does anyone determine what’s “good”? How do we determine what’s good for the environment?” in a recent interview, Sunstein explained,

“For most nudges, we’re thinking of people’s good by reference to their own judgments and evaluations. We’re not thinking that the government should make up its own decision about what’s good for people. The environment can fit within that framework to a substantial extent, but it has a wrinkle, which is that often when we buy certain goods or use certain energy or drive certain cars.…we inflict harm on others, so our own judgments about our own welfare aren’t complete. We want nudges that do help people who are being nudged but also help people who are harmed by those who are not taking adequate account of the risks they are imposing on other people.”

Sunstein’s pragmatism also seems a good fit for President Obama, demonstrated in the following quote:

“I think on a lot of problems, including environmental problems, we can make progress without getting stuck on issues that divide people. The price system can be used in a way that fits with people’s moral obligations. If you’re inflicting harms on other people but the costs of your actions (become) higher, then you’re probably going to inflict lower harms on other people. One of the great tasks of the next decade is to ensure that when people are creating risks though their daily activities, that they bear the cost.

I believe also that one big motivator of behavior is economic and another big motivator is moral, and for certain environmental activities we should appeal to people’s conscience. A lot of people are buying hybrids not because they save money, which they might, but because it’s the right thing to do. I just bought a hybrid myself. The reason I bought it was moral.”

Fundamental to Sunstein’s public policy theory is the idea that more information makes people more able to get the right outcome. If Sunstein is nominated to the Court, or if he is confirmed in the position at the Office of Information Technology and Regulatory Affairs, we should expect to receive an education.