Judicial restraint

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Judicial restraint
Judicial restraint
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Famous cases
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judicial restraint
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Judicial activismJudicial independenceJudicial interpretationJudicial minimalism
Judicial restraint is a theory of judicial interpretation. In other words, it is a theory of how a judge interprets laws.

Like most theories, definitions vary slightly according to different sources. In general, judicial restraint is the concept of a judge(s) not injecting their own preferences in legal cases and rulings. This includes not second guessing policy decisions by lawmakers.[1][2]

Judges are said to exercise judicial restraint if they are hesitant to strike down laws unless they are obviously unconstitutional. It is spoken of as the opposite of judicial activism, also referred to as "legislating from the bench."

Advocates of judicial restraint argue that judges do not have the authority to act as policy makers. Among judicial restraint advocates are Thomas Jefferson, Learned Hand, and Hugo Black, to name a few.

Opponents argue that activism is a necessity when the other branches of government do not act to bring about social change. Some opponents include William J. Brennan and Ronald Dworkin.

In deciding questions of constitutional law, judicially-restrained jurists believe that it is important to defer to legislative intent, stare decisis, the Plain Meaning Rule and a generally strict and textualist view of judicial interpretation.

Throughout the United States' history, several court cases have become clear examples of both judicial restraint and judicial activism; including Dred Scott v. Sandford and Brown v. Board of Education respectively. (Click here for more famous cases)


Judicial restraint is a complex concept. The definition of the term itself varies slightly according to different sources. Additionally, the theory includes various complicated terms and rules such as "stare decisis" and "Plain Meaning Rule." Such definitions and terms are listed below.

Click on the tabs to navigate to (a) the various definitions of judicial restraint and (b) related terms.

The term "judicial restraint" has a number of varying definitions. Some of those are listed below:

Auburn University

In the Glossary of Political Economy Terms, published by Auburn University, the glossary defines judicial restraint as the

view that the Supreme Court (and other lesser courts) should not read the judges' own philosophies or policy preferences into the constitution and laws and should whenever reasonably possible construe the law so as to avoid second guessing the policy decisions made by other governmental institutions such as Congress, the President and state governments within their constitutional spheres of authority. On such a view, judges have no popular mandate to act as policy makers and should defer to the decisions of the elected "political" branches of the Federal government and of the states in matters of policy making so long as these policymakers stay within the limits of their powers as defined by the US Constitution and the constitutions of the several states.

—Auburn University, Glossary of Political Economy Terms

Eastern Michigan University

In the Fundamentals of Judicial Philosophy, published by Eastern Michigan University, judicial restraint is defined as a

jurist (judge or justice) who adheres to a philosophy of restraint can be characterized as one who believes that democracy has intrinsic, not just instrumental, value; that the judiciary is the least powerful of the three branches of government; and reveres the values of stability and predictability in lawmaking.

—Eastern Michigan University, Fundamentals of Judicial Philosophy

Marquette University Law School

Nationally renowned legal expert Rick Esenberg defines judicial restraint as

A judge exercising restraint must act on external and legitimate sources of authority. Judicial restraint, for our purposes, is the notion that judges ought to base their decisions upon a source of authority that is outside of themselves and their own notions of the just. More fundamentally, this source should be rooted, at some point, in the formal consent of the governed, as opposed to the judge's preferred political or moral philosophy. In other words, the exercise of judicial authority ought to be based upon, or fairly inferable from, some language in the constitution or statutes.[2]

Famous cases



The following cases are some in which judicial restraint was practiced.

  • Luther v. Borden (1849) - Sometimes referred to as the first instance of judicial restraint[4]
Chief Justice: Roger B. Taney
Associate Justices: John McLean, James M. Wayne, John Catron, John McKinley, Peter V. Daniel, Samuel Nelson, Levi Woodbury, Robert C. Grier
  • Dred Scott v. Sandford (1857) - Declared that slaves were not protected by the Constitution and could never become citizens
Chief Justice: Roger B. Taney
Associate Justices: John McLean, James M. Wayne, John Catron, Peter V. Daniel, Samuel Nelson, Robert C. Grier, Benjamin R. Curtis, John A. Campbell
  • Plessy v. Ferguson (1896) - Upheld the constitutionality of "separate but equal," perpetuating segregation
Chief Justice: Melville Fuller
Associate Justices: Stephen J. Field, John M. Harlan, Horace Gray, David J. Brewer, Henry B. Brown, George Shiras, Jr., Edward D. White, Rufus W. Peckham
Chief Justice: William Rehnquist
Associate Justices: Byron R. White, John Paul Stevens, Sandra Day O'Connor, Antonin Scalia, William J. Brennan, Jr., Thurgood Marshall, Harry A. Blackmun, Anthony M. Kennedy


The following cases are some in which judicial restraint was not practiced, or where judicial activism was practiced.

Chief Justice: Earl Warren
Associate Justices: Hugo Black, Stanley F. Reed, Felix Frankfurter, William O. Douglas, Robert H. Jackson, Harold H. Burton, Tom C. Clark, Sherman Minton
  • Baker v. Carr (1962) - Decided that redistricting presented justiciable questions, allowing federal courts to intervene
Chief Justice: Earl Warren
Associate Justices: Hugo Black, Felix Frankfurter, William O. Douglas, Tom C. Clark, John M. Harlan II, William J. Brennan, Jr., Charles E. Whittaker, Potter Stewart
  • Roe v. Wade (1973) - Ruled that the right to privacy granted by the 14th Amendment applied to a woman's decision to have an abortion, making it easier for women to acquire abortions.
Chief Justice: Warren Burger
Associate Justices: Harry Blackmun, William J. Brennan, Thurgood Marshall, Potter Stewart, William Rehnquist, Lewis F. Powell, Jr., William O. Douglas, Byron R. White,
  • Bush v. Gore (2000) - Ruled the Florida Supreme Court's method for recounting ballots as having violated the Equal Protection Clause of the Fourteenth Amendment in a presidential election, essentially deciding the 2000 presidential elections in favor of George W. Bush
Chief Justice: William Rehnquist
Associate Justices: John P. Stevens, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer
  • District of Columbia v. Heller (2008) - Declared the Washington, D.C. ban on private ownership of hand guns unconstitutional in violation of the 2nd Amendment, effectively extending the 2nd Amendment to individuals
Chief Justice: John G. Roberts
Associate Justices: John P. Stevens, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito

Opinions on judicial restraint

Arguments in favor

  • The power to make the laws is the power of the legislative branch alone, courts have constitutional right to do so.
  • Federal judges are not elected officials and therefore do not necessarily speak for the people.
  • Judges are not equipped with the background necessary to enforce social judgments as they see fit.


Thomas Jefferson, judicial restraint advocate

Thomas Jefferson

In an 1825 letter to Edward Livingston, Thomas Jefferson expressed strong views in favor of judicial restraint: "One single object... [will merit] the endless gratitude of society: that of restraining the judges from usurping legislation. And with no body of men is this restraint more wanting than with the judges of what is commonly called our General Government..."[5]

Learned Hand

Billings Learned Hand was a judge who served on the United States District Court for the Southern District of New York from 1909 to 1924 and on the United States Court of Appeals for the Second Circuit from 1924 to 1961. He was also a judicial philosopher and a leading proponent of judicial restraint. "Hand has been quoted more often than any other lower-court judge by legal scholars and by the Supreme Court of the United States."[6]

Hugo Black

Black was an associate justice on the U.S. Supreme Court from 1937 to 1971 and a strong supporter of judicial restraint. He believed that the power of making laws should be reserved to the legislature and wrote that "power corrupts, and unrestricted power will tempt Supreme Court justices just as history tells us it has tempted other judges."[7]

Current Supreme Court justices

Of the current members of the United States Supreme Court, the following could be described as advocates of judicial restraint: Chief Justice John G. Roberts and Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

Arguments opposed

  • Judicial activism is necessary to correct injustices and promote needed social change.
  • It is an acceptable last resort when the executive and legislative branches refuse to act.
  • Activism is necessary to actively interpret the constitution as new conditions arise.


William J. Brennan

Brennan served on the U.S. Supreme Court from 1956-1990 as an associate justice. He was known for his strong belief in the Bill of Rights and the belief that the Constitution must be adapted to keep up with a changing world. Among statements describing his constitutional interpretation is the following: "Successive generations of Americans have continued to respect these fundamental choices and adopt them as their own guide to evaluating quite different historical practices. Each generation has the choice to overrule or add to the fundamental principles enunciated by the Framers; the Constitution can be amended or it can be ignored."[8]

Ronald Dworkin

Dworkin is a philosopher who studies constitutional law. He is best known for his "theory of law as integrity, in which judges interpret the law in terms of consistent and communal moral principles, especially justice and fairness". He believes in an interpretivist approach to law and morality.[9]

Other theories

In addition to judicial activism and judicial restraint, other theories of judicial interpretation include:

See also

External links

Additional reading