* Was a contributing editor to The New Republic and The American Prospect
* Served as an advisor for Barack Obama’s presidential campaign in 2008
* Was appointed by Obama to head the White House Office of Information and Regulatory Affairs in 2009
* Embraces the philosophy of Judicial Minimalism
* Helped coin the term “Libertarian Paternalism”
* Believes that the U.S. Constitution should be viewed as a “living,” evolving document
* Advocates “cognitive infiltration” to counter the influence of “conspiracy theories”
Born into a Jewish-American family on September 21, 1954 in Waban, Massachusetts, Cass Sunstein earned a B.A. degree from Harvard College in 1975. Three years later, he received a J.D. from Harvard Law School, where he had served as executive editor of the Harvard Civil Rights-Civil Liberties Law Review.
After graduating from law school, Sunstein clerked for Justice Benjamin Kaplan of the Massachusetts Supreme Judicial Court (1978-1979), and then for U.S. Supreme Court Justice Thurgood Marshall (1979-1980).
From 1980-81, Sunstein worked as an attorney-advisor in the U.S. Justice Department’s Office of Legal Counsel.
In 1981 he took a job as an assistant professor at the University of Chicago Law School, where he would continue to teach full time until 2008, at which point his status changed to that of visiting professor. During his tenure in Chicago, Sunstein also taught courses in the university’s Department of Political Science.
In the 1980s and early 1990s, Sunstein was married to Lisa Ruddick, whom he met when both were undergraduates at Harvard. Ruddick became an associate professor of English at the University of Chicago in 1981. The couple’s marriage eventually ended in divorce.
Sunstein’s legal philosophy falls under the heading of “judicial minimalism,” which is rooted in the belief that judges should focus chiefly on deciding whatever case is before them at any given time, and avoid any impulse they may have to make significant changes to existing law, or to issue decisions whose effects are broad and far-reaching. Sunstein describes judicial minimalism as follows:
“A minimalist court settles the case before it, but it leaves many things undecided. It is alert to the existence of reasonable disagreement in a heterogeneous society. It knows that there is much that it does not know; it is intensely aware of its own limitations. It seeks to decide cases on narrow grounds. It avoids clear rules and final resolutions. Alert to the problem of unanticipated consequences, it sees itself as part of a system of democratic deliberation; it attempts to promote the democratic ideals of participation, deliberation, and responsiveness. It allows continued space for democratic reflection from Congress and the states. It wants to accommodate new judgments about facts and values. To the extent that it can, it seeks to provide rulings that can attract support from people with diverse theoretical commitments.”
Similarly, Ballotpedia.org explains:
“Judicial minimalists offer a type of constitutional interpretation characterized by case-specific interpretations of the law. Judges who believe in judicial minimalism believe that stable constitutional law is in everybody’s interest and place great importance on the concept of precedent of previous cases and stare decisis. Judges who follow the minimalist viewpoint argue that only very small interpretations away from precedent along with narrowly-applied interpretations are based on the general direction of what society could constitute true judicial restraint rather than any originalist or strict constructionist viewpoint while still allowing for a Living Constitution to take place. Experts view judicial minimalists as those who are anti-conservative, yet also anti-liberal in which their stance is well-expressed. Depending on a judge’s particular preferences, a minimalist on the court would be likely to slowly bolster or chip away at key precedents rather than proclaim a lasting ban or legalization of a controversial subject on rulings of the Constitution.”
Sunstein and economist Richard Thaler coined the term “libertarian paternalism,” which they discussed at length in their co-authored 2003 article titled “Libertarian Paternalism Is Not An Oxymoron,” published in The University of Chicago Law Review. The abstract for their article reads as follows:
“The idea of libertarian paternalism might seem to be an oxymoron, but it is both possible and legitimate for private and public institutions to affect behavior while also respecting freedom of choice. Often people’s preferences are ill-formed, and their choices will inevitably be influenced by default rules, framing effects, and starting points. In these circumstances, a form of paternalism cannot be avoided. Equipped with an understanding of behavioral findings of bounded rationality and bounded self-control, libertarian paternalists should attempt to steer people’s choices in welfare-promoting directions without eliminating freedom of choice. It is also possible to show how a libertarian paternalist might select among the possible options and to assess how much choice to offer.”
In 1992, Sunstein articulated his view that the office of the U.S. presidency should be elevated to a position higher than that of the president’s administration generally, and that the Constitution should be viewed as a “living,” evolving document:
“Now, it is alarming to people who want to believe in the unitary executive, like me, that the 19th-century writers thought this was self-evident. [The unitary executive theory holds that a powerful president controls the entire executive branch.] That’s the policy recommendation and the conclusion that the Constitution is largely, not entirely, but largely irrelevant. Now, I say what I’ve said about the Constitutional matter with considerable regret. I wish it weren’t so. The executive department’s vision of the Constitution, with the president on top and the administration below, has elegance and simplicity and tremendous appeal. It would make much more sense, I submit, given our current situation, to have a Constitution in which the president is on top of administration is below. But that was not the founder’s original conception. The Constitution does not speak in those terms…. Because the conclusion that I’ve reached seems to me so unfortunate, I’m trying hard to figure out what can be done about it…. One thing that perhaps can be done about it is to say, well, we shouldn’t really be originalists about the meaning of the Constitution. Maybe Judge Bork had wrong. Maybe we should think that the Constitution has a high degree of flexibility. Maybe it’s a changing and living document. Now, under that conception of Constitutional interpretation, maybe we can have the ingredients of a new unitary executive idea.”
In 1993, Sunstein published The Partial Constitution. One theme address in the book is the author’s belief that the government is bound by the U.S. Constitution to cover the cost of abortion procedures for pregnant women.
In the same book, Sunstein argues that a government-formed panel of “nonpartisan experts” should be placed in charge of administering a “First Amendment New Deal” in the form of a new “Fairness Doctrine” designed to ensure that a “diversity of view[s]” is presented on the airwaves — in some cases through “compulsory public-affairs programming,” if necessary.
In 1998 Sunstein said that “a progressive consumption tax would be a really good thing” that “hardly anyone would be hurt by.”
Also in 1998, Sunstein said the following about socialism:
“I dont have anything good to say about socialism in the abstract. If what’s understood by socialism is efforts to insure that people don’t live under desperate conditions, well, you know, Roosevelt and Madison and Jeferson were all socialists. I think that … these abstractions often can just create holy wars where people might really be able to be in agreement….
“If what socialism means is public ownership of the means of production, I think that is a recipe for economic disaster and democratic failure of the worst kind. The socialist ideal, which [dates] back to Aristotle, of human flourishing, is, that’s great. That’s Roosevelt’s ideal. And Johnson’s too, and Dewey’s….
“Economic equality is a dangerous ideal and something that people should be frightened of, and not happy about. But …. if what you mean by economic equality is floors for everybody and ceilings for everybody, well, floors, absolutely. Ceilings? Probably. A consumption tax. Certainly a consumption ceiling. Great.”
On April 14, 1999, Sunstein co-authored an opinion piece in The Chicago Tribune titled “Why We Should Celebrate Paying Taxes,” which said:
“In what sense is the money in our pockets and bank accounts fully ‘ours’? Did we earn it by our own autonomous efforts? Could we have inherited it without the assistance of probate courts? Do we save it without the support of bank regulators? Could we spend it if there were no public officials to coordinate the efforts and pool the resources of the community in which we live?… Without taxes there would be no liberty. Without taxes there would be no property. Without taxes, few of us would have any assets worth defending. [It is] a dim fiction that some people enjoy and exercise their rights without placing any burden whatsoever on the public fisc. … There is no liberty without dependency. That is why we should celebrate tax day …”
In his 2001 book, Republic.com, Sunstein argued that the Internet posed a threat to democracy because it promoted cyberbalkanization, a phenomenon whereby people isolate themselves ideologically within groups that share their own political perspectives, while turning a blind eye to any views or facts that might challenge their beliefs. To counter this tendency, Sunstein called for government-imposed diversity on websites promoting a particular political perspective. Specifically, he suggested that all partisan websites should feature “electronic sidewalks” providing links to resources that offer opposing views. In a 2001 interview, he elaborated:
“Sites of one point of view [would] agree to provide links to other sites, so that if you’re reading a conservative magazine, they would provide a link to a liberal site and vice versa, just to make it easy for people to get access to competing views. Or maybe a pop-up on your screen that would show an advertisement or maybe even a quick argument for a competing view. [break] The best would be for this to be done voluntarily, but the word ‘voluntary’ is a little complicated, and sometimes people don’t do what’s best for our society unless Congress holds hearings or unless the public demands it. And the idea would be to have a legal mandate as the last resort, and to make sure it’s as neutral as possible if we have to get there, but to have that as, you know, an ultimate weapon designed to encourage people to do better.”
Several years later, Sunstein retracted this suggestion as a “bad idea.”
In a 2002 paper (titled “Is There a Constitutional Right to Clone?”) for the Harvard Law Review, Sunstein wrote: “Moral repugnance might well be a response to vaguely remembered science fiction stories or horror movies, or to perceptions based on ignorance and confusion (as in the idea that a clone is a complete ‘copy’ of the original, or a ‘copy’ that is going to be evil).” He speculated further: “For some people, cloning might be the only feasible way to produce a biological offspring. It would certainly not be ludicrous to say that as a matter of constitutional law, the state has to produce a strong justification for intruding on that choice in cases in which it is the only realistic option.”
In a review of Francis Fukuyama’s 2003 book Our Posthuman Future, Sunstein wrote: “It is silly to think that ‘potential’ is enough for moral concern [about cloning]. Sperm cells have ‘potential’ and (not to put too fine a point on it) most people are not especially solicitous about them.”
Sunstein is an animal-rights activist who once said, in a speech at Harvard University: “We ought to ban hunting, if there isn’t a purpose other than sport and fun. That should be against the law. It’s time now.”
He also has stated that livestock and wild animals should have legal “rights” and should be empowered to file lawsuits; that the human consumption of meat is a practice that should be ended permanently; and that the use of animals for work, entertainment, science, and food is “a form of unconscionable barbarity not the same as, but in many ways morally akin to, slavery and mass extermination of human beings.”
“[T]here should be extensive regulation of the use of animals in entertainment, scientific experiments, and agriculture,” Sunstein wrote in a 2002 working paper while at the University of Chicago Law School. He expanded on these ideas in his 2004 book Animal Rights: Current Debates and New Directions.
Also in 2004, Sunstein published The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More than Ever. Arguing that citizens’ rights exist only to the extent that they are granted by the government, the book drew its inspiration from President Franklin Roosevelt’s 1944 proposal of a new Bill of Rights. WorldNetDaily reports that among the demands laid out in the book are the following:
In the same book, Sunstein states that “if the nation becomes committed to certain rights [such as the foregoing], they [those rights] may migrate into the Constitution itself.” He adds that “at a minimum, the second bill should be seen as part and parcel of America’s constitutive commitments.” Another notable quote from the book is the following:
“Much of the time, the United States seems to have embraced a confused and pernicious form of individualism. This approach endorses rights of private property and freedom of contract, and respects political liberty, but claims to distrust ‘government intervention’ and insists that people must fend for themselves. This form of so-called individualism is incoherent, a tangle of confusions.”
Further, Sunstein depicts socialist nations as being more committed than their capitalist counterparts to the welfare of their own citizens: “During the Cold War, the debate about [social welfare] guarantees took the form of pervasive disagreement between the United States and its communist adversaries. Americans emphasized the importance of civil and political liberties, above all free speech and freedom of religion, while communist nations stressed the right to a job, health care, and a social minimum.”
In addition, Sunstein: (a) claims that the “socialist movement” did not take hold in the U.S. in part because of a “smaller and weaker political left or lack of enthusiasm for redistributive programs”; (b) laments that “in a variety of ways, subtle and less subtle, public and private actions have made it most difficult for socialism to have any traction in the United States”; and (c) asserts that “the absence of a European-style social welfare state is certainly connected with the widespread perception among the white majority that the relevant programs would disproportionately benefit African Americans (and more recently Hispanics).”
Contending that “the judiciary is already politicized,” Sunstein, in his 2003 book Why Societies Need Dissent, says the notion that “judges are not policymakers” is a “myth.” Judges’ “political commitments,” he maintains, “very much influence their votes.” He also states that “judges are subject to conformity pressures, and like-minded judges go to extremes, in the sense that ideological predispositions are heightened when judges are sitting with others who were appointed by presidents of the same political party.”
According to Benjamin Wittes’ review of Sunstein’s book: “Sunstein would give up on the idea that law is supposed to be an apolitical discipline in which practitioners put aside their political beliefs. The judiciary Sunstein contemplates would have Democratic and Republican caucuses.”
In April 2005, the Yale chapter of the American Constitution Society (ACS) sponsored a conference at Yale Law School titled “The Constitution in 2020,” whose purpose was to give liberal/left lawyers and judges a forum wherein they could trade ideas on what they would like the U.S. Constitution to look like 15 years down the road, and how they could influence it toward that end. Sunstein participated in this forum, where he put forth his ideas about a “Second Bill of Rights.” John Hinderaker wrote in The Daily Standard this assessment of the goals of the ACS forum:
“The essence of the progressive constitutional project is to recognize ‘positive’ rights, not just ‘negative’ rights, so that citizens are not only guaranteed freedom from specified forms of government interference, but also are guaranteed the receipt of specified economic benefits. The bottom line is that Congress would no longer have the discretion to decline to enact liberal policies. The triumph of the left would be constitutionally mandated.”
Sunstein has argued in favor of expanding wefare benefits and redistributing wealth in the United States, but contends that the country’s “white majority” opposes such a development because of deep-seated racism: “The absence of a European-style social welfare state is certainly connected with the widespread perception among the white majority that the relevant programs would disproportionately benefit African Americans (and more recently Hispanics).”
In 2007, Sunstein co-authored (with fellow attorney Eric A. Posner) a 39-page University of Chicago Law School paper titled “Climate Change Justice,” which held that it was “desirable” for America to make “distributive justice” payments to poorer nations by entering into a compensation agreement that would result in a financial loss for the United States. “If we care about social welfare,” the authors write, “we should approve of a situation in which a wealthy nation is willing to engage in a degree of self-sacrifice when the world benefits more than that nation loses.” Moreover, Sunstein and Posner speculate about the possibility of achieving this redistribution by means other than direct payments:
Also in their 2007 paper, Sunstein and Posner advocate for the enactment of a worldwide carbon tax that would levy particularly high tarriffs on the United States — as punishment for America’s allegedly disproportionate contribution to carbon emissions across the globe.
In their 2008 book Nudge: Improving Decisions About Health, Wealth, and Happiness, Sunstein and co-author Richard Thaler draw upon research in psychology and behavioral economics to defend the use of libertarian paternalism, a concept that was explained earlier in this profile, and choice architecture, a term referring to the idea that people’s decisions in everyday life are influenced by the manner in which choices are presented or explained to them. The book also introduces the notion of nudge theory — a behavioral science concept that, much like choice architecture, asserts that even small changes in how choices are presented to people, can influence the decisions they make in any given situation.
One topic that Nudge addresses is the question of how American society can persuade more people to donate their organs posthumously for medical purposes. Sunstein and Thaler theorize that the main reason why many people do not make arrangements for such donations, is because in order to do so, they are required to actively give “explicit consent” — something which most people never take the time to do. To remedy this, the authors advocate a policy of “presumed consent” — the opposite of explicit consent — whereby the the government would “presume” that someone has consented to having his or her organs removed for transplantation unless that person has explicitly indicated his or her wish to prevent such an action. Some excerpts from the book:
Sunstein and Thaler realize, however, that such a proposal “is a hard sell politically” because “[m]ore than a few people object to the idea of ‘presuming’ anything when it comes to such a sensitive matter.” Thus the authors suggest an alternate solution — “mandated choice” — where the government forces all people to make a decision on the matter:
“Mandated choice could be implemented through a simple addition to the driver’s license registration scheme used in many states. With mandated choice, renewal of your driver’s license would be accompanied by a requirement that you check a box stating your organ donation preferences. Your application would not be accepted unless you had checked one of the boxes. The options might include ‘yes, willing to donate’ and ‘no, unwilling to donate.'”
Under such a system, government would employ “incentives and nudges” rather than “requirements and bans.”
Also in Nudge, Sunstein and Thaler posit the idea that “the state owns the rights to body parts of people who are dead or in certain hopeless conditions, and it can remove their organs without asking anyone’s permission.” “Though it may sound grotesque, routine removal is not impossible to defend,” they write. “In theory, it would save lives, and it would do so without intruding on anyone who has any prospect for life.” “Although this approach is not used comprehensively by any state,” the authors continue, “many states do use the rule for corneas (which can be transplanted to give some blind patients sight). In some states, medical examiners performing autopsies are permitted to remove corneas without asking anyone’s permission.” Sunstein and Thaler concede, however, that the “routine removal” approach “violates a generally accepted principle, which is that, within broad limits, individuals should be able to decide what is to be done with and to their bodies.”
Sunstein and Thaler also address at length the subject of marriage, which they say has become little more than “an official license scheme” run by the government. Arguing that government’s role in officially recognizing or licensing such unions should be terminated, they contend that all marriages should become “strictly private matters, performed by religious and other private organizations.” “The only legal status states would confer on couples would be a civil union,” the authors propose, “which would be a domestic-partnership agreement between any two people.” Some additional excerpts from the book:
Sunstein and Thaler assure their readers that if their proposal to have the state stop issuing marriage contracts were to be adopted, the depth of the commitment between marriage partners would be unaffected. “People take their private commitments serious[ly],” the authors write. “Members of religious organizations, homeowners’ associations and country clubs all feel bound, sometimes quite strongly, by the structures and rules of such organizations.”
In 2008, Sunstein said the following about why he favored the establishment of a government that could “nudge” people’s behavior in certain desired directions:
In January 2008, Sunstein and Harvard Law School Professor Adrian Vermeule co-authored an academic paper titled “Conspiracy Theories,” which was published in The Journal of Political Philosophy. In that piece, the authors argue that government agents should be deployed to engage in “cognitive infiltration” of “extremist groups” whose members embrace various “conspiracy theories” — so as to inject a measure of “cognitive diversity” into their ranks. The abstract for the Sunstein-Vermeule paper reads as follows:
“Many millions of people hold conspiracy theories; they believe that powerful people have worked together in order to withhold the truth about some important practice or some terrible event. A recent example is the belief, widespread in some parts of the world, that the attacks of 9/11 were carried out not by Al Qaeda, but by Israel or the United States. Those who subscribe to conspiracy theories may create serious risks, including risks of violence, and the existence of such theories raises significant challenges for policy and law. The first challenge is to understand the mechanisms by which conspiracy theories prosper; the second challenge is to understand how such theories might be undermined. Such theories typically spread as a result of identifiable cognitive blunders, operating in conjunction with informational and reputational influences. A distinctive feature of conspiracy theories is their self-sealing quality. Conspiracy theorists are not likely to be persuaded by an attempt to dispel their theories; they may even characterize that very attempt as further proof of the conspiracy. Because those who hold conspiracy theories typically suffer from a crippled epistemology, in accordance with which it is rational to hold such theories, the best response consists in cognitive infiltration of extremist groups. Various policy dilemmas, such as the question whether it is better for government to rebut conspiracy theories or to ignore them, are explored in this light.”
In response to the Sunstein-Vermeule article, liberal columnist Glenn Greenwald wrote: “There is a very strong case to make that what Sunstein is advocating is itself illegal under long-standing statutes prohibiting government ‘propaganda’ within the U.S., aimed at American citizens.”
In 2009, Sunstein and Vermeule co-authored yet another paper — titled “Conspiracy Theories: Causes and Cures” — stating that the U.S. government could seek to limit or eradicate conspiracy theories by such methods as:
On July 4, 2008, Sunstein married his second wife, Harvard professor Samantha Power, whom he had met when they both worked as advisors to the presidential campaign of Sunstein’s longtime friend and former University of Chicago Law School colleague, Barack Obama.
In his 2009 book, On Rumors, Sunstein explores ways of addressing the fact that “in the era of the Internet, it has become easy to spread false or misleading rumors about almost anyone.” He cites, for instance, the notion that during the 2008 presidential election season, “some right-wing websites liked to make absurd and hateful remarks about the alleged relationship between Barack Obama and the former radical Bill Ayers.” While claiming that “one of the websites’ goals was undoubtedly to attract more viewers,” he speculates that others were likely motivated by a desire to promote policies and views that they strongly believe in. For example: “When Sean Hannity, the television talk show host, attacked Barack Obama because of his alleged associations, one of his goals might have been to promote values and causes that he cherishes.”
As a practical means of thwarting the spread of false rumors, writes Sunstein, “freedom [to express all viewpoints] usually works, but in some contexts, it is an incomplete corrective.” For cases where such freedom does not result in the squelching of “damaging rumors” or misinformation, he proposes the imposition of strong “corrective” measures that would have a “chilling effect” on rumor-mongers in the future. Vis-a-is websites, for instance, Sunstein suggests the implementation of regulations by which “those who run websites would be obliged to take down falsehoods upon notice.” He also calls for granting, to parties claiming to be the targets of false rumors, the “right to demand a retraction after a clear demonstration that a statement is both false and damaging.” Sunstein does not, however, explain how an agency tasked with deciding which statements are false or damaging, would be staffed. Nor does he indicate the criteria by which such decisions would be made.
To increase “deterrence” against false rumors still further, Sunstein advocates the enactment of laws that would make it easier to bring libel suits against alleged offenders.
In early August 2012, Sunstein announced that he would be leaving his administration post later that month, in order to return to the faculty of Harvard Law School, where he became the Felix Frankfurter Professor of Law in February 2013. He continues to hold that position to this day.
Sunstein has authored hundreds of articles and dozens of books. Among his books are such title as: After the Rights Revolution (1990); The Partial Constitution (1993); Democracy and the Problem of Free Speech (1993); Democracy and the Problem of Free Speech (1995); Legal Reasoning and Political Conflict (1996); Free Markets and Social Justice (1997); One Case at a Time (1999); The Cost of Rights: Why Liberty Depends on Taxes (co-authored with Stephen Holmes, 2000); Risk and Reason (2002); Why Societies Need Dissent (2003); The Second Bill of Rights (2004); Animal Rights: Current Debates and New Directions (2004); Laws of Fear: Beyond the Precautionary Principle (2005); Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (2005); Are Judges Political? An Empirical Analysis of the Federal Judiciary (2005); Infotopia: How Many Minds Produce Knowledge (2006); Nudge: Improving Decisions about Health, Wealth, and Happiness (co-authored with Richard Thaler, 2008); On Rumours: How Falsehoods Spread, Why We Believe Them, What Can Be Done (2009); Simpler: The Future of Government (2013); Why Nudge? (2014); Conspiracy Theories and Other Dangerous Ideas (2014); The Ethics of Influence (2015); #Republic (2017); Impeachment: A Citizen’s Guide (2017); The Cost-Benefit Revolution (2018); On Freedom (2019); Conformity (2019); How Change Happens (2019); Too Much Information (2020); Sludge: What Stops Us from Getting Things Done and What to Do about It (2021); Liars: Falsehoods and Free Speech in an Age of Deception (2021); This Is Not Normal: The Politics of Everyday Expectations (2021); How to Interpret the Constitution (2023); Decisions about Decisions: Practical Reason in Ordinary Life (2023); and Advanced Introduction to Behavioral Law and Economics (2023).
In addition to his many aforementioned activities and writings, Sunstein also has served as a contributing editor to The New Republic and The American Prospect, and he has frequently testified before congressional committees.