TRIMMING
Lord Halifax was the original trimmer. He defended trimming in the following way:
Why, after we have played the foole with throwing Whig and Tory at one another, as boys do snowballs, doe we grow angry at a new name, which by its true signification might do as much to put us into our witts, as the others have been to put us out of them? The Innocent Word Trimmer signifieth no more than this, that if men are together in a Boat, and one part of the Company would weigh it down on one side, another would make it lean as much to the contrary, it happneth there is a third Opinion, of those who conceave it would do as well, if the Boat went even, without endangering the Passengers . . . [T]rue Vertue hath ever been thought a Trimmer, and to have its dwelling in the middle, between the two extreams.1
Notwithstanding Halifax’s understanding of virtue, the idea of trimming has become a pejorative. Consider these words, meant to describe Dante’s “neutrals,” or “trimmers”:
These innumerable seekers of safety first, and last, who take no risk either of suffering in a good cause or of scandal in a bad one, are here manifestly, nakedly, that which they were in life, the waste and rubble of the universe, of no account to the world, unfit for Heaven, and barely admitted to hell. They have no need to die, for they “never were alive.” They follow still, as they have always done, a meaningless, shifting banner that never stands for anything because it never stands at all, a cause which is no cause but the changing magnet of the day. Their pains are paltry and their tears and blood mere food for worms.2
The tears and blood of trimmers may or may not be “mere food for worms,” but no one marches proudly under the trimmers’ banner. No one feels delighted or honored to be called a trimmer. A presidential candidate is not likely try to attract votes by proclaiming that he loves to trim, and a Supreme Court nominee will not announce at her confirmation hearing that she is a trimmer. But in this chapter, I shall attempt to show that in many domains, there are powerful arguments on behalf of trimming.
Sometimes trimming is a sensible rule of thumb, helping us to identify what is best. Sometimes trimming is a reasonable effort to identify and to preserve the best arguments and the deepest convictions on all sides. Sometimes trimming helps to reduce social conflict and public outrage. Sometimes trimming can be defended as a means of insuring that no one is excluded, humiliated, or hurt. Often trimming produces reasonable outcomes, and it also produces a degree of approval, or at least acquiescence, from all sides.
The trimmer’s instinct is to see what diverse people have to say and to explore whether something might be drawn from their perspectives. As we will see, trimmers avoid the extremes, but they reject minimalism. Unlike minimalists, they do not bracket hard questions or attempt to leave such questions undecided.
To understand trimming, it will be useful to begin with some brief historical notes. Though the original trimmers have been largely lost in contemporary political and legal debates, we can learn a great deal from what they had to say.
The first mention of a “trimmer” in print was in The Character of a Trimmer, Neither Whigg nor Tory, published in 1682.3 The text was written by the most influential trimmer, George Savile, the Marquis of Halifax, who left public office in February 16904 and died in April 1695.5 After the publication of Lord Halifax’s essay, trimmers were mentioned frequently in the popular press for the next three years and occasionally thereafter, until 1689.6 Trimmers appeared frequently in Roger L’Estrange’s widely read London newspaper, the Observator, in which political dialogues that had previously taken place between Whig and Tory were changed in November 1682 to be between a trimmer and a character named Observator.7 To L’Estrange, anyone who did not follow the strictest of Tory policies could be termed a trimmer.8 He summarized the defining trimmer characteristics as follows:
Trim. And what Is a Trimmer at last?
Obs. Why a Trimmer is a Hundred Thousand Things; A Trimmer I tell ye, is a man of Latitude, as well in Politiques as Divinity: An Advocate, both for Liberty of Practice in the State, and for Liberty of Conscience in the Church.9
Obs. But then you must Consider that there are Severall sorts of Trimmers; as your State-Trimmer, Your Law-Trimmer; Your Church-Trimmer, Your Trading-Trimmer, &c.10
Others characterized trimmers as nonconformists who went to church and were not sufficiently in favor of punishing Protestant dissenters, the more moderate sort of Tories, or “secret Whigs.”11 As we shall see, the important point that “there are Severall sorts of Trimmers” applies no less in the twenty-first century than it did in the seventeenth.
Notwithstanding the frequent and explicit references to trimmers in the relevant period, historians continue to debate the existence of an actual group of thinkers and officials who deserved the label. In the first half of the twentieth century, historians assumed that there was such a group and that it was led by Halifax; the Oxford English Dictionary gave the definition of trimmer as “Lord Halifax and those associated with him (1680–1690).”12
In the 1960s and 1970s, however, some scholars began to question whether Halifax was associated with the trimmer movement during his lifetime, and even to doubt whether there was an actual trimmer movement with which to associate. According to a prominent 1964 essay by Donald Benson in the Huntington Library Quarterly, “The pamphlets of the Trimmer controversy give no indication that Halifax was identified in any way with the Trimmers during the period. He is not mentioned in the controversy by name or, apparently, by implication.”13According to Benson, “it seems unlikely that a Trimmer party was ever more than a fiction of political controversy.”14
Whatever we make of the controversy, Lord Halifax was certainly a self-identified trimmer who argued for “dwelling in the middle, between the two extreams.”15 He rejected the fixed positions of both Tories and Whigs; he believed that the government should make a place both for royal authority and for a strong parliament. He wondered, “Why do angry men aile to rayle so against Moderation? Doth it not looke as they were going to some very scurvy Extream, that is too strong to be digested by the more considering part of mankind?”16
For trimmers, moderation is a signal virtue, and it entails a sympathetic understanding of what is best in and least dispensable to the “extreams.” In politics, Halifax favored a balance between the monarchy and the commonwealth, urging that the monarch must be constrained by law, that a constitutional order should protect civil liberties, and that parliaments should play a large role.17 On his account, the trimmer is especially enthusiastic about the law, seeing legal rules as “the Chaines that tye up our unruly passions.”18 In religion, Halifax sought “a mutuall Calmnesse of mind” between Protestants and Catholics, “overlooking of all veniall faults.”19 With respect to longstanding social divisions, the trimmer “is not eager to pick out the sore places in History against this or any other party; on the contrary, is very solicitous to find out any thing that may be healing, and tend to an agreement.”20
As England’s Glorious Revolution of 1688 developed, Halifax insisted on maintaining contacts with both sides.21 William III, who ascended the throne as a result of the revolution, practiced what he called trimming by including both Whigs and Tories in government, and he often said that he wanted to “‘go upon the bottom of the trimmers’ or [be] ‘the middle party.’”22 In an important effort to rehabilitate Halifax, the British politician and historian Thomas Babington Macaulay wrote with evident sympathy, “He had nothing in common with those who fly from extreme to extreme and regard the party which they have deserted with an animosity far exceeding that of consistent enemies. His place was on the debatable ground between the hostile divisions of the community.”23 In Macaulay’s account, Halifax “was therefore always severe upon his violent associates, and was always in friendly relations with his moderate opponents. Every faction in the day of its insolent and vindicate triumph occurred his censure; and every faction, when vanquished and persecuted, found in him a protector.”24 As we shall see, this conception of Halifax has close parallels in the approach to law and politics that I mean to describe here.
My goal, however, is not one of intellectual biography or historical recovery. For purposes of contemporary law and politics, we can draw inspiration from Halifax and his associates, but for us, trimming is to be made, not found. The initial task is to show exactly why people might choose to trim.
COMPROMISERS, PRESERVERS, AND MODERATES
Two Kinds of Trimmers. Some trimmers are “compromisers.” They identify the extremes and attempt to steer between them. Seeking to reduce social conflict, hoping to avoid public outrage, and believing that the middle position should be presumed to be best, compromisers try to give something to both sides. Other trimmers are “preservers.” They attempt to identify and to preserve what is most essential, most intensely felt, and most valuable in the competing views. Seeking to learn from those views, such trimmers give sympathetic scrutiny to apparent antagonists and seek to vindicate what is most appealing in both sides’ positions.
What makes preservers distinctive is that they insist on identifying what is most reasonable in competing positions, with a particular desire to insure that, to the extent possible, no one is or feels rejected or repudiated. Preservers care both about judgments that are actually most essential (in their independent judgment) and also about judgments that are most deeply felt (in the subjective views of the antagonists). These different emphases may, of course, press in different directions. Preservers who emphasize what is most essential might not end up in the same position as preservers who emphasize what is felt most intensely. At first glance, preservative trimming seems attractive or at least plausible. It is not so easy to identify a principled argument for compromising as such (though I will try).
Compromisers and preservers can be found in many domains. Consider, for example, the view that restrictions on abortion are justified only if they do not amount to an “undue burden” (suitably specified) on freedom of choice; that obscenity is protected unless it runs afoul of a test that pays close attention to community standards and social values; and that whether public displays of the Ten Commandments are constitutional depends on the specific context. In some of these cases, the prevailing view might be an effort to steer a middle course. In others, the prevailing view may be a product of a principled belief that trimming recognizes, and makes space for, the most legitimate claims of the competing sides.
Problems and Concerns. From these examples, it should be clear that what counts as the best form of trimming, and what qualify as the poles between which trimmers steer, will not always be self-evident. Trimmers might disagree with one another about the proper way to trim; two or more approaches might legitimately count as trimming. And what are the poles that interest trimmers? If influential leaders say that members of an unpopular religious group should be exterminated, and other leaders say that such people should be left alone, we would not admire trimmers who conclude that members of that religious group should be allowed to live but be incarcerated for life.
It would seem to follow that sensible trimmers should be prepared to evaluate, and not simply to observe, the competing positions—a view that will lead from compromise to preservation. It might also seem to follow that nearly any position could be characterized as trimming, because any position is likely to be between at least some imaginable poles. I will return to these problems below.
Moderates Versus Trimmers. It is important to distinguish between ideological moderates and trimmers, even though it will not always be easy to tell them apart in practice, and even though they will often agree. Moderates might simply believe that commercial advertisements are entitled to some constitutional protection, but less so than political speech. Moderates might not care about what other people think and might hold their positions in a social vacuum. This just happens to be their preferred interpretation of the Constitution, one that makes them moderates under current conditions.
Such moderates are not trimmers, because they do not much care about the competing positions and are not trying to steer between them. They are neither compromisers nor preservers. They might well refuse to compromise with others, or lack the slightest interest in investigating polar positions to preserve what is deepest and best in such positions. For moderates, it might not be especially important to insure that no one is humiliated or hurt. But some moderates might also turn out to be trimmers. For example, they might compromise by choosing to accept a position halfway between their moderate position and that of one of the extremists.
REASONS TO TRIM
Why would anyone want to trim? In answering that question, I will focus on judges, but most of the arguments apply to others as well, whether they are inside or outside government.
Trimming as Best in Principle. After sympathetic investigation of the contending positions, a judge might conclude that the best views steer between the poles. Consider the question of affirmative action in education. Maybe a judge believes that rigid racial quota systems are beyond the pale, but that it is acceptable to treat race as a “factor” in admissions decisions. A judge of this kind would produce a form of constitutional trimming for the affirmative action debate. Indeed, the US Supreme Court has taken exactly this approach in that domain; affirmative action is an area in which trimming has reigned triumphant.25 Judges who reach this conclusion might be moderates rather than trimmers. But we could certainly imagine preservers and even compromisers who end up with this conclusion.
Trimming as a Rule of Thumb. A humble judge might believe that trimming is a good rule of thumb—a kind of heuristic for what is right. Unsure what to do, a judge might think that if he trims, he is most likely to avoid a mistake. It is here that we can understand why some trimmers are compromisers. Consider the fact that human beings typically demonstrate “extremeness aversion.”26 Suppose that you are confronted with a menu of options: a set of possible cell phones or television sets. Suppose, too, that you have incomplete information and that you are not sure what you want. If so, you might want to avoid the poles, trying to identify and to select the middle option. Indeed, jurors themselves have been found to trim, in the sense that they steer between the extremes. For this reason, the prosecutor’s selection of criminal counts can greatly matter in what the jury ends up doing.
At first glance, people’s tendencies here might seem puzzling. Why, exactly, is the middle choice the best one? This is a good question, but under certain assumptions, extremeness aversion is perfectly reasonable, because it reflects a sensible rule of thumb, above all for those who are unsure how to proceed. Suppose that a politician is confronted with a problem on which intelligent people are divided—say, whether there should be a big increase in the minimum wage. Suppose that some people urge one extreme course: no increase at all in the minimum wage. Suppose that other intelligent people urge another extreme course: a large increase in the minimum wage. If the politician is not sure which position is right, she might choose to trim, with the thought that the truth probably lies in between.
A judge who is disposed to compromise might have the further thought that by trimming, she can avoid the most serious dangers associated with both of the extremes. A judge who wants to avoid the worst risks might select trimming if each side is able to offer persuasive warnings about the hazards that would accompany the course suggested by the other. For those who believe that moderation is usually wiser, less dangerous, or both, trimming makes a lot of sense.
Those who adopt trimming as a rule of thumb might be either compromisers or preservers. They might not have the time or the capacity to think carefully about which position is right—or having thought carefully, they might not be sure. If so, trimming might seem to be the prudent course. If they are preservers, trimmers will also ask: On both sides, what commitments are most attractive, or most deeply held, or essential?
Strategic Trimming. A more confident person might trim for purely strategic reasons. Suppose that a judge believes that affirmative action is always unconstitutional or that the Constitution does not protect a right to privacy. Such a judge is not so moderate, and she may not be humble. But she might conclude that other judges cannot be persuaded to accept her position. Trimming might be an indispensable method for building a majority on behalf of the best outcome that is realistically possible.
Here, then, we can find grounds for trimming as a form of (strategic) compromise. The strategic trimmer is trying to obtain the best available result in light of the constraints produced by practical realities on a multimember court. Of course, strategic trimmers play a big role in national legislatures. Congress could not easily do its job without them. Coalitions are possible here among moderates, principled trimmers, and their strategic siblings. Some judges may believe that trimming leads to the best result, while others sign on because trimming is the best that they can get.
Trimming and Precedent. Judges must, of course, follow precedents, at least as a general rule. A judge might believe that trimming is the only way to proceed while respecting this requirement. Indeed, a system based on precedent is likely to produce a doctrine that is replete with a kind of trimming. Both compromisers and preservers might accept this proposition.
Suppose that a judge believes that as a matter of principle, it would be best if the First Amendment were interpreted not to protect commercial advertising at all, or if the Constitution were not taken to protect the right to choose abortion. Confronted with unwelcome precedents, the judge might attempt to limit the protection of commercial advertising—perhaps by allowing the government to regulate misleading advertising—and might conclude that the right to choose does not include partial-birth abortion. In fact, this kind of trimming occurs all the time. Judges do not like certain precedents, but they respect them, trying to confine their reach. Judges of this kind might hope to move the law, by degrees, in their preferred directions, but they will have to settle for a high degree of trimming.
Social Conflict and Trimming. A judge might not know which result is best and might trim in order to protect the court as an institution. When Chief Justice John Roberts cast the decisive vote to uphold the Affordable Care Act in 2012, he was engaged in a form of trimming. He might well have been trying to avoid an intense social conflict over the role of the Court—a conflict from which the Court might not have emerged unscathed.
More generally, the trimmer might seek to minimize social conflict and conclude that trimming is the best way of accomplishing that task. In politics or on a court, a trimmer might be particularly concerned about intense public outrage. The trimmer might believe the following: if the Court strikes down the Affordable Care Act, it will cause a sharp and enduring split in the nation, making the role of the Court—and perhaps the judges’ political leanings—a central part of national debates. Or if the Court rejects an individual’s right to own guns, its decision will cause polarization and agitation, and perhaps trigger a large public reaction, conceivably affecting the result of a presidential campaign. Alert to the potentially harmful consequences of certain rulings, a trimmer might be seeking to minimize the damage.
Or the trimmer might think that if the public would be outraged by one decision or another, perhaps the decision is wrong, because the people’s intensely held beliefs offer some clues about what decisions would be wrong or right. If the public became agitated about the creation or denial of a certain right, it is at least possible that a judge can learn from the anticipated public agitation. Perhaps this is not true of judges. Even if it is not, it might be true of other public officials.
To the degree that public outrage is their concern, trimmers might be accused of being weak, passive, or cowardly. Return to these words: “They follow still, as they have always done, a meaningless, shifting banner that never stands for anything because it never stands at all, a cause which is no cause but the changing magnet of the day.” In some contexts, the accusation is warranted. If judges allow racial oppression because of the intense desires of the oppressors, the changing magnet of the day has far too much power. But in difficult cases in which reasonable people differ, trimming can be understood to have moral foundations, captured in the idea that people should be respected and included, and should be neither humiliated nor hurt. When trimmers attempt to take on board the deepest commitments of legal or political adversaries, they are attempting to show respect to all sides—and to reduce the risk that any side will feel offended, diminished, or aggrieved.
AGAINST TRIMMING
Thus defended, trimming runs into some serious objections. As before, I will focus on the role of judges, but with suitable adjustments, the objections apply to others as well.
BLUNDERING TRIMMERS
The Supreme Court’s most important obligation is to interpret the Constitution correctly. Some of the time, trimming might seem to violate that obligation. Why, it might be asked, should judges believe that trimming will yield the correct interpretation? Similar questions could be asked of those involved in politics.
This question could be pressed with equal vigor by skeptics armed with competing accounts of constitutional interpretation. Justices Antonin Scalia and Clarence Thomas are originalists; they believe that the original understanding of the Constitution settles the document’s current meaning. Originalists might well believe that trimming will yield bad interpretations. In their view, judges should not trim; they should construe the founding document to fit with the original understanding. Justice Oliver Wendell Holmes Jr. believed that judges should uphold acts of Congress unless the violation of the Constitution is plain. Trimmers will often violate Holmes’s injunction, because they will vote to invalidate congressional enactments even when the violation is far from plain.
Still other people believe that the Constitution should be given a “moral reading,” in the sense that judges should invest the document with the best moral principles, consistent with precedent.27 In many cases, trimming will produce an inferior moral reading. Those who favor moral readings will ask, “Why should judges split the difference rather than interpret the disputed provisions in the morally best way?” And whatever our preferred account of constitutional interpretation, we can certainly find areas in which trimming would be unacceptable.
In politics, the problem is not obscure. If some people say that all suspected terrorists should be tortured, and other people say that no one should be tortured, we might not be enthusiastic about the view that half of all suspected terrorists should be tortured. Or suppose that a judge is presented with these alternatives: (1) strike down school segregation in all circumstances; (2) never strike down school segregation; and (3) strike down school segregation only when racial separation is demonstrably unequal, in the sense that the schools attended by white students are better. The trimming solution is the third, but the first is clearly preferable. In 1954 the Supreme Court chose (1) in its famous decision in Brown v. Board of Education. It would not have been right for the Court to choose (3)—even though reasonable people disputed the constitutional question and even though (1) left many segregationists feeling humiliated and not treated with respect.
The examples could easily be multiplied. They show that trimming is unacceptable when it produces an incorrect or implausible interpretation of the Constitution. We can easily think of political analogues.
CONFUSED TRIMMERS
What are the extremes that concern trimmers? And what, exactly, is the solution that counts as trimming? Might not many solutions qualify? So long as judges are sane, it might seem inevitable that they will trim, in the sense that they will steer between imaginable poles. In this light, how can we know whether judges are trimming?
On a court with a number of members, we might begin with the suggestion that its judges determine the extremes. If two of them are to the far left and two are to the far right, then the conscientious trimmer can start to find her bearings. This possibility demonstrates that no court could consist solely of trimmers. The reason is that if all judges are trimmers, then none will be able to find her place, because the very practice of trimming depends on being able to identify a number of people who are not trimmers at all.
Notwithstanding this point, there is a certain logic, at least on the Supreme Court, in focusing on the distribution of views on the tribunal. Suppose that the trimmer believes that those views reflect something important about the distribution of views within the nation. Perhaps justices are selected in a way that insures representation of reasonable positions among specialists. If so, the tribunal is hardly an arbitrary source of diverse perspectives. And again, the same point might be made about political institutions.
It is not entirely clear, however, that judicial trimmers should focus on their tribunal. Suppose that the court is to the right or the left of the nation, so that the distribution of opinions within that court is skewed compared to the distribution of opinions within the country at large. Perhaps the trimmer should look to society as a whole, not to the judiciary. Or suppose that the court is to the right of where it was twenty years ago, and the trimmer believes that the relevant extremes are best identified by examining the range of views in a previous era. Should the trimmer work on the basis of the contemporary range, rather than an earlier one—or should the trimmer think about the range of views that is likely to prevail in about a decade?
The answers to such questions will depend on why, exactly, the trimmer trims, and also on the distinction between compromisers and preservers. If trimmers seek to diminish public outrage and social conflict, they are likely to look to the range of views in society, not on the court. If the trimmers trim because trimming is a good rule of thumb and is likely to lead to good results, the choice between the tribunal and the public depends on the judge’s theory of interpretation. Suppose that the judicial trimmer thinks that the meaning of the Constitution depends on some mix of respect for precedent and the original understanding. If so, the views of the public will not be relevant. What matters is the distribution of views within the group of people who are entrusted with interpreting the Constitution and who have relevant expertise.
MANIPULABLE TRIMMERS
The Problem. For both compromisers and preservers, what count as the extremes, and what counts as trimming, depends on the alternatives that are presented. As the philosopher Robert Goodin has objected, the trimmers’ procedure “is outrageously sensitive to the choice of end points. Tack Saint Thomas Aquinas onto the one end or the Marquis de Sade onto the other, and the midpoint shifts wildly.”28
The point is familiar in marketing. In order to get people to buy their products, self-interested sellers can exploit people’s aversion to extremes and desire to seek the middle. Shrewd sellers might introduce some really high-cost items in order to make a moderately costly item seem to be the compromise choice. Prosecutors can do the same thing. Alert to extremeness aversion and intent on obtaining a conviction, they can bring an especially severe charge in order to help insure a conviction on a less severe one. The upshot is that trimmers can be manipulated by those who select or identify the range of options.
It is clear that trimmers have to be self-conscious about this risk; they must take steps to guard against their own vulnerability. We might distinguish between naive trimmers, who are easily exploited by others, and sophisticated trimmers, who, in deciding whether to trim, are alert to others’ strategic incentives and whose very alertness diminishes those incentives. Naive trimmers are vulnerable here, and sophisticated ones may have to do a great deal of work to acquire the necessary information.
Arbitrary Poles? Even if preservers can overcome the problem of manipulation, a related problem remains: arbitrariness. What is the midpoint? It depends on what the end points are. If the end points are arbitrary, then the midpoint is arbitrary as well. If no justification is given for the end points, then there is no justification for the midpoint that they establish. Preservers are in a position to correct this problem because they will provide some scrutiny to the end points, insuring that they contain something to preserve. Preposterous readings of the Constitution—for example, the view that the president can censor speech however he sees fit—can be ruled out of bounds and are uninformative for purposes of trimming.
The problem of arbitrariness seems harder for the compromiser to solve. But suppose that the trimmer believes that the current distribution of views is no accident and that it was produced by a set of mechanisms that insures against arbitrary extremes. If the trimmer is concerned about the distribution of views on the Supreme Court, he might believe that political processes and professionalization ensure that the extremes are not genuinely arbitrary. And if he does not believe that, he might consult the nation more generally, believing that in a free and democratic society, the range of opinion is not a bad guide to what is reasonable. Of course, preservers might be skeptical on this count.
LAWLESS TRIMMERS
Trimmers are influenced by a set of concerns that might not be relevant, certainly in the domain of constitutional law and perhaps more generally. True, trimming can reduce social conflict and the intensity of public outrage at judicial decisions. But trimming is often inferior to minimalism on this count, simply because trimmers will not decline to decide. And even if trimming is a good way of reducing outrage, why should judges care about public outrage? Should they refuse to issue the best interpretation of the Constitution simply because the public would be angered by their decision? It is also true that trimming can be defended on strategic grounds. But should judges really be strategic? Should they attempt to persuade their colleagues by pressing for an interpretation of the Constitution that they do not endorse on principle?
Perhaps the least controversial defense of trimming involves respect for precedent. Sometimes judges will have to yield in their preferred interpretation in deference to past rulings. But this defense is limited, because it applies only when precedents impose an obstacle to selecting the favored approach. In some settings, no precedents require trimming. In other settings, the precedents are opaque, and judges can proceed with their preferred interpretations without trimming.
POLITICAL TRIMMERS
On one view, trimming is a quintessentially political act. For all of the reasons given thus far, legislators and other policy makers might want to trim. Indeed, trimming is a pragmatic necessity in the political domain. This point raises a distinctive objection. Why shouldn’t judges simply respect, and uphold, whatever form of trimming emerges from politics? And if this question can be answered, another one remains: Why should we think that judges are good at trimming?
It is true that if the political process produces ideal trimming, judges might respect the results. But what emerges from politics is sometimes legitimately challenged on constitutional grounds, and the constitutional complaint raises issues that might not have been handled adequately politically. If so, judges must decide what to do. A distinguished tradition holds that so long as the Constitution is unclear, judges should respect whatever emerges from the political process. But this view is highly controversial, and those who reject it might decide to trim. To the objection that judges might not know enough to trim, the best response is that preservers attempt to obtain the information that would justify their judgments, and that compromisers act as they do precisely because of their own humility.
TAKING STOCK
These are formidable objections; they show that it would be foolish to adopt trimming as one’s only response. But the objections should not be read for more than they are worth. They fail to show that trimming has no place in politics or constitutional law. Here, as in the case of minimalism, we need to investigate the costs of decisions and the costs of errors, and the investigation may argue in favor of trimming.
It is true that if judges are confident that the best interpretation of the Constitution forbids trimming, they should not trim. They should endorse the best interpretation. But suppose that judges are not confident about which interpretation is best, and they seek to trim on the ground that trimming is a reasonable rule of thumb. If so, they should be expected to spend some time on the merits, to insure that the result is defensible, that manipulation has not led them astray, and that a reasonable rule of thumb has not produced an error in the particular case. If they are convinced on those counts, they might do best to trim.
The objections to trimming downplay both the possibility that judges lack confidence on the right outcome (which might justify trimming) and the force of precedent (which might require trimming). It is true that once judges have decided to trim, they will not know exactly what to do; several possible approaches might count as trimming. But at least some approaches will be ruled out, and the range of attractive options will be defined and narrowed.
Because judges are specialists, they should not be mere compromisers, steering between the poles on the basis of their own ignorance. Some of the best arguments for trimming emphasize the importance of preserving the most essential and deeply held components of competing points of view. Preservers can maintain that they trim not out of cowardice, but on the ground that an investigation of the merits has persuaded them that the result of trimming is best. And if trimming insures that those with competing views do not feel humiliated or hurt, it is better still.
With suitable adjustments, all of these points apply in the political domain as well. Representatives may have clarity on what is best, and they may not want to trim. If experts are clear that a certain air pollutant is hazardous, or that certain equipment badly endangers workers, representatives should probably follow the experts rather than trim. But in the face of reasonable dispute, trimming has its attractions, not least because it makes solutions possible.
MINIMALISTS VERSUS TRIMMERS
Trimmers and minimalists seem to be cousins. Both groups seek to reduce the most intense social conflict and public outrage, and some of the arguments that support minimalism support trimming as well. No less than trimmers, minimalists are motivated by a principle of civic respect. But while minimalists leave hard issues for another day, trimmers do no such thing. Minimalists celebrate the virtues of not deciding; trimmers want to decide. Who’s right?
Against Minimalism: On Predictability and Exporting Costs. In chapter 10, we saw that minimalism might be easiest in the short run, but in the long run, it can prove destructive, in part because it exports the burdens of decision to others in a way that might produce a great deal of trouble. However difficult a decision may be, it may be best to make it, and sooner rather than later. Wide rulings can reduce the overall burdens of decision; they can also reduce mistakes. And if enduring social controversy is a legitimate cause for concern, then wide rulings might be defended on the ground that such controversy will be diminished or muted if the court settles a range of issues at once.
Shallowness has its virtues, but as we have also seen, it is sometimes best to resolve foundational issues. Some cases cannot be decided at all unless judges make a relatively large-scale decision about constitutional law. And even if depth is not strictly required, judges may reasonably opt for it. They might conclude that they have enough understanding and experience to offer, right now, an ambitious account of the free-speech or equal-protection principle. If so, why should they hesitate?
Alert to these objections, trimmers are eager to rule widely in a way that will minimize confusion and conflict for the future. In especially sensitive areas, they insist that wide rulings will simultaneously create more stability and less controversy. They are perfectly comfortable with clear rules, laid down in advance. They are also willing to think hard about the foundations of constitutional law—about the appropriate constitutional method and about the grounds of one right or another. Trimmers refuse to export decisions to posterity.
It should now be clear why and when minimalists and trimmers disagree. In a dispute involving a gun control measure, a minimalist would be tempted to focus on the particular measure in a way that would leave a great deal undecided. A trimmer, by contrast, would try to decide many of the key questions in a way that would produce a high degree of predictability. A committed minimalist would prefer a narrow decision, limited to the measure in question. The minimalist would ask the trimmer, “Why decide issues that are not squarely presented?” The trimmer would respond, “Why leave so much uncertainty?”
The debate between minimalists and trimmers involves two familiar factors: the costs of decisions and the costs of errors. Trimmers tend to believe that their approach has the key advantage of clear rules—namely, the specification of outcomes in advance. Minimalists think that their approach has the key advantage of open-ended standards—namely, flexibility in the face of an uncertain future. The choice between the two approaches depends on the context, which will tell us about the costs of decisions and the costs of errors. We could easily imagine a situation in which minimalism should be preferred to trimming because politician or judges lack the information to justify wide or deep rulings; consider novel First Amendment questions involving new technologies. We could also imagine situations in which trimming should be preferred to minimalism, because the problem arises so frequently that uncertainty is intolerable; consider regulation of commercial advertising or sexually explicit speech.
Over time, minimalist rulings might produce a regime of trimming. As cases accumulate, minimalism is highly likely to prove unstable. Narrow rulings with respect to obscenity, commercial advertising, and sex equality will eventually produce a degree of width. Depth is also likely. To decide whether one case is analogous to another, judges have to offer reasons, and as problems become more confusing and difficult, those reasons will become more ambitious.
Many trimmers are compromisers. They think that if we steer between the poles, we will probably do better than if we choose one or another. Other trimmers are preservers. They attempt to identify and preserve what it is deepest, most intensely held, and best in competing positions.
Because of their sympathetic attention to all sides, trimmers can claim a degree of humility. To the extent that they are preservers, trimmers are willing to scrutinize the poles and not simply observe them. For that reason, preservers are less subject to manipulation, and, in the end, they have reason for confidence that their decision is correct, not merely a way of splitting the difference. By their very nature, trimmers are motivated by a desire to reduce social conflict, to show a kind of civic respect, and to insure that no side feels excluded, humiliated, or hurt.
It is possible, of course, that any form of trimming will produce a bad or even indefensible result. It is also true that trimmers can be manipulated. If the poles are arbitrary, the trimming solution will be arbitrary too. But I hope that I have said enough to show that trimming is not only a pervasive practice but also an honorable one. In many areas, it is superior to the reasonable alternatives.