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.
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.
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.
- Main article: legislative intent
...is a practice by a legislature to enact new legislation on the basis of judicial precedence. It is also considered as the legislature’s intentions in enacting a bill into law, frequently derived from the legislative history.
- Main article: stare decisis
...is Latin for "to stand by that which is decided." The term is used to describe the legal principal that precedents - previously argued cases and court decisions - are to be followed by subsequent courts.
It is a general rule that when a point of law has been settled by decision, it forms a precedent which is not later - and certainly not lightly - to be departed from. Stare decisis is not always to be relied upon, and courts sometimes, albeit infrequently, find it necessary to overrule precedent when cases have been hastily decided, or contrary to principle.
Plain Meaning Rule
- Main article: Plain Meaning Rule
...also known as the literal rule, is an approach to judicial interpretation favored by some judges. A judge who believes in using the Plain Meaning Rule is someone who believes that statutes and laws should be interpreted to mean what the ordinary meaning of the language suggests that the law means.
In other words, the law is to read and interpreted in a common-sense, ordinary way, without elaborate or sophisticated interpretations that are at variance with what the plain meaning of the law says.
Textualists favor the Plain Meaning Rule.
- Main article: strict constructionism
...a legal theory meant that it limits the power of judicial interpertation of laws and respective constitutions at the State and Federal level only to the written letter of the law.
- Main article: textualism
...a theory of statutory interpretation that holds that a statute's original meaning as evidenced in its text should govern how judges interpret the statute, as opposed to alternative methods of statutory interpretation such as inquiring into historical sources in attempt to discover the intent of the legislative body that approved the statute.
Textualism is consistent with the Plain Meaning Rule, which says that interpreters of statutes ought to interpret what a statute says according to its "plain meaning".
- Main article: judicial interpretation
... refers to how a judge interprets laws. Different judges interpret the laws of their state or the country in different ways. Some judges are said to interpret laws in ways that cannot be sustained by the plain meaning of the law; at other times, some judges are said to "legislate from the bench". These judicial behaviors are sometimes referred to as judicial activism, which is contrasted to judicial restraint as a way of interpreting both what laws say and how much freedom judges have to create new laws from the bench.
Other theories of judicial interpretation, in addition to judicial restraint and activism, include:
The following cases are some in which judicial restraint was practiced.
- 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
- Lyng v. Northwest Indian Cemetery Protective Association (1988) - Declared "A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them."
- 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.
- Brown v. Board of Education (1954) - Overturned Plessy v. Ferguson, ruling segregation unconstitutional
- 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.
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..."
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."
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."
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.
- 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."
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.
- Judicial philosophy
- Judicial activism • Judicial empathy • Judicial minimalism • Judicial restraint • Plain Meaning Rule • Strict constructionism • Legislative intent • Living Constitution • Judicial interpretation • Judicial accountability • Judicial supremacy • Judicial independence • Originalism • Stare decisis • Textualism
- Wikipedia: judicial restraint
- USLegal.com: judicial restraint
- About.com: judicial restraint
- Antonin Scalia v. Richard A. Epstein - two views on judicial activism (dead link)
- Bloomberg Law Reports, "Judicial Restraint in the Early," November 30, 2011
- CNN.com, "Rehnquist's Legacy one of Restraint," September 4, 2011
- Spokane Daily Chronicle, "Court bill would wipe out judicial restraint," March 23, 1937
- USLegal.com, "Judicial restraint law & legal definition," accessed December 7, 2011
- "Wisconsin Policy Research Institute" The Wisconsin Interest, January 8, 2009
- "Legal Workshop" Definition of Textualisim and Use, June 22, 2009
- Wikipedia:Judicial Restraint
- Jefferson on the Judiciary, 1825 letter to Edward Livingston
- Wikipedia:Learned Hand
- Wikipedia:Hugo Black
- Wikipedia:William J. Brennan, Jr.
- Wikipedia:Ronald Dworkin