In Praise of Trimming
Not only is trimming pervasive, says the government's new regulatory czar, it is also honorable.
The source: “Trimming” by Cass R. Sunstein, in Harvard Law Review, Feb. 2009.
The vestibule of Hell in Dante’s Divine Comedy (1308–21) was populated with ancient representatives of what Cass R. Sunstein considers an underappreciated class, the “trimmers.” Dante wrote that a very large group of miserable souls had been sent to Hell because they had lived “without infamy and without praise.” Today they might be denigrated as lukewarm in their allegiances, wishy-washy in their politics, flip-floppers in their beliefs. Sunstein, a law professor recently appointed director of President Barack Obama’s Office of Information and Regulatory Affairs—in effect, the government’s regulatory czar—springs to their defense. Not only is trimming pervasive, he says, it is also honorable.
Trimmers inhabit both the legal and political realms. They are part of a great group averse to extremes. One type of trimmer is the compromiser. “Seeking to reduce social conflict, attempting to avoid public outrage, and believing that the middle position is presumptively best, compromisers try to give something to both sides,” Sunstein writes.
Then there are preservers. They come in two varieties. One group attempts “to discern what they believe, on the basis of their own independent inspection, to be the deepest and most valuable parts of opposing positions.” Other preservers are “concerned, not with their own independent judgments but with what is thought, by those who hold opposing positions, to be deepest and most important.”
Compromisers and preservers can both be defended, according to Sunstein, but he advances a feeble justification of split-the-difference compromisers. He says that sometimes a risk-averse judge might choose to compromise because the hazards of either side seem dangerous, or because he or she might not have the time or capacity to think carefully—or reach a firm conclusion—about which position is right.
But Sunstein bursts with more compelling arguments—some based on U.S. Supreme Court cases—in support of trimmers of the preserver persuasion. A “prominent example” of this kind of trimming is Supreme Court justice Lewis Powell’s opinion in University of California v. Bakke (1978), which held that rigid quota systems for college admissions are unconstitutional, but that race may be treated as a “factor” in admissions decisions.
Trimming is a decision-making process, Sunstein says. Almost every judge has to “trim” at least a little by deferring to past decisions. Indeed, he asks, “isn’t any sane position a form of trimming?” On its surface, he says, Brown v. Board of Education (1954), which invalidated laws that allowed “separate but equal” schools, doesn’t seem like an instance of trimming. But perhaps the Court trimmed after all, he reasons, by not striking down laws that sounded neutral on the surface but had discriminatory consequences.
Trimming is different from minimalism—in which a court rules on the narrowest possible question, leaving the broader questions for another day. Sunstein is almost dismissive of Chief Justice John C. Roberts’s view that “if it’s not necessary to decide more to dispose of a case, in my view, it is necessary not to decide more.” Even so, Sunstein says that sometimes minimalism is defensible when the area of law is novel, judges lack information, or private and public institutions do not require a clear settlement.
But trimmers, Sunstein writes, believe that “in law as well as in life, it is sometimes best to settle on a course of action rather than to rest content with a series of narrow, ad hoc decisions.” Minimalism can create confusion, leaving government and the public unsure of how to proceed.
Sunstein acknowledges that trimming is sometimes wrong. The Supreme Court’s “separate but equal” decision in Plessy v. Ferguson (1896) was a consummate act of malign trimming. It authorized segregation, allowing the provision of separate public services and facilities for blacks in order to placate segregationists in the South and elsewhere. And trimming can also go awry in the hands of decision makers who blunder or are confused, or when extremists deliberately exaggerate their position so that the only remaining middle path actually veers sharply in one direction.
“By their very nature, trimmers hope to reduce social conflict, to show a kind of civic respect, and to ensure that no side feels excluded, humiliated, or hurt,” Sunstein says. Trimming is not always proper, he believes, but there are powerful arguments in its favor, and sometimes—despite its bad rap—it’s simply the best thing to do.