Extremism in Defense of Stability is No Vice
Maximalism in Barbara and Cook
In two big end-of-term cases, the Court, per the Chief Justice, reached out to decide unnecessary constitutional questions. Trump v. Barbara opined on the constitutional scope of birthright citizenship when a statutory holding would have sufficed. And Trump v. Cook approved the constitutionality of Federal Reserve independence, even though that point was not only unessential to the result but uncontested by the parties.
Was the Court justified in reaching out so far in both Barbara and Cook? This question is especially pointed for the Chief Justice, who has long been associated with principles of judicial minimalism, gradualism, and restraint.
To wit, the Chief has for decades endorsed “a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” Being a prudent judge, however, he has also—albeit less often—recognized that “there are cases that warrant an exception.”
It seems implausible that it was “necessary to decide more” in Barbara or Cook, given the narrower grounds available “to dispose of” those cases. Again, Barbara featured a statutory basis for decision that was at least as easy to reach as the Court’s grander constitutional rationale. And, in Cook, the Court could easily have deemed the executive’s removal process faulty without opining on an issue not even pressed by the president. In both cases, in fact, separate opinions complained about the gratuitous breadth of what the majority was doing. So both cases would have to fall within “an exception.”
Perhaps an exception can be made whenever the Court is sufficiently confident of the correctness of its result. But that carve-out threatens the rule itself and also seems at odds with minimalism’s ethos of humility and restraint. A more likely and compelling account would focus on pragmatic concerns. As Cook itself put it: “How much to say” in various contexts is “ultimately a matter of prudence.”
And what are the prudential interests at play? Here is what Cook says:
In this extraordinary case, we have had the benefit of not only amici and oral argument but months of internal consultation and deliberation. We see no reason to leave the public in limbo, or to sow doubt as to the status of one of our Nation’s (and the world’s) most important financial institutions. Although we appreciate that others may see matters differently, we would not so quickly unsettle this “special arrangement sanctioned by history.”
This passage hits a few different notes. The Court has engaged in adequate “deliberation,” suggesting both that procedural fairness has been achieved and that the Court is confident in its ruling. The Court also emphasizes the stakes. The case is “extraordinary,” the “public” might be left “in limbo,” and the fate of “one of our Nation’s (and the world’s) most important financial institutions” hangs in the balance. As Justice Kavanaugh elaborated in his concurrence, he “would not risk destabilizing the U. S. economy just so that we can further mull over” the issue.
Similar points could be made about Barbara. The constitutional issue had been well ventilated, yielding procedural fairness and adequate confidence. In addition, legal citizenship is very important. Figuring out who is a citizen is a basic task of the state, implicating many aspects of private life and public administration. If the Federal Reserve and the global economy are important enough to make an exception, so too are the precious individual rights associated with citizenship.
Are these decisions compatible with another principle of gradualism, namely, the doctrine of one last chance? One might think not, on the theory that these major constitutional rulings came down without affording adequate notice.
Yet the doctrine of one last chance does not apply to these cases, for their constitutional holdings preserved settled practices. Notice is critical before a destabilizing decision. By contrast, the logic of gradualism does not counsel against—and may even support—a rushed decision that shores up the status quo ante. Normally, reservations are evidence of judicial caution. But to reserve either the Fed’s independence or the constitutional foundation of citizenship would have been destabilizing.
Consider some of the hazier writings in these cases. In Barbara, Justices Gorsuch and Thomas might have afforded citizenship to many (most? almost all?) children of unlawful immigrants born in the United States. But we don’t know for sure, because they reserved that rather consequential issue. Likewise in Cook, Justices Alito, Gorsuch, and Barrett voted on relatively technical, factbound grounds that say little about the Federal Reserve in general. Even as separate writings, these opinions created some uncertainty. Had they been majority opinions, they would have yielded a frenzied scramble.
These points may also provide a retroactive justification for the Court’s decision to presage its views on the Federal Reserve in Trump v. Wilcox, even though doing so was dicta. Wilcox was decided in May 2025. So, when it comes to the Federal Reserve, judicial minimalism has been suspended for over a year.
Interestingly, Barbara suggests that the Court’s zeal for maximalism may lately have increased. In Trump v. CASA, the liberal dissenters objected that the Court should have reached the issue of birthright citizenship right away. But the majority instead deferred the merits for about a year. Do these events suggest initial impassivity or temporization in the face of a powerful and alarmingly destabilizing chief executive? Now, as the president’s reelection recedes into history, perhaps the time is ripe for bolder action.
In short, Barbara and Cook together suggest the following maxims. Extremism in defense of stability is no vice. And minimalism in the pursuit of constancy is no virtue.