Judicial restraint
Judicial restraint is a legal philosophy that encourages judges to limit their own power in reviewing laws and statutes, emphasizing deference to the legislative and executive branches of government. This approach requires judges to exercise self-restraint, only declaring laws unconstitutional in clear cases of constitutional violations. A key principle of judicial restraint is that judges should not intervene in politically contentious issues unless absolutely necessary. It operates under the premise that the actions of other government branches are generally constitutional and should only be challenged when there is undeniable evidence of wrongdoing.
Historically, judicial restraint has been associated with prominent jurists and has shaped significant court decisions. For instance, the doctrine was evident in the Supreme Court's ruling in Plessy v. Ferguson, emphasizing a reluctance to overturn laws related to racial segregation. Over time, shifts toward judicial activism challenged this restraint, particularly during the Warren Court era, which resulted in landmark rulings upholding civil rights and liberties.
In contemporary discussions, judicial restraint remains a topic of debate among legal scholars and practitioners, as it is often viewed through the lens of its implications for democracy and individual rights. Critics argue that it can perpetuate injustice, while supporters assert it fosters stability and respect for established laws. Ultimately, the concept of judicial restraint continues to influence how courts interpret the Constitution and the role of the judiciary in American governance.
Judicial restraint
Judicial restraint is an approach to judicial review of laws and statues by which judges exercise self-restraint limiting their power to declare laws and statutes unconstitutional. This approach restrains judges from moving the country in new directions through use of the legal system in deference to the other branches of government. Procedurally, this approach relies on judges determining if a plaintiff has standing under Article III of the United States Constitution to bring a case to court; the plaintiffs must demonstrate that they have been specifically harmed in a tangible way by another and that redress is proper by judicial decision. Judicial restraint prevents legal decisions on closed or settled cases where legal resolution has no practical effect. Considering the constitutionality of a law or arguments of a case is a last resort. Judicial restraint presumes the actions by other branches of government are constitutional, and judges will only overrule or overturn the product of other government branches when they judge there is a clear violation of the constitution.
Background
Harvard Professor James Bradley Thayer built a legal framework for judicial restraint in an 1893 Harvard Law Review article. Thayer reasoned judicial restraint must abide except when there is no reasonable doubt there has been a clear violation of the Constitution. The "minimalism doctrine" of judicial restraint demands the courts not make new law or establish new precedents. Courts must limit their rulings to legislated law and constitutional principles. The "political question doctrine" encourages judicial restraint on politically controversial issues by which new interpretations of the Constitution might cause social, economic, and political instability. Thayer’s legacy was to leave "procedural devices" for sidestepping constitutional issues, embedding restraint in the thinking of justices, and a legal checklist for restraint for justices. The "pragmatists," as they have come to be called by academic lawyers and judges, include renowned jurists Oliver Wendell Holmes Jr., Louis D. Brandeis, and Felix Frankfurter, all of whom practiced judicial restraint.
In 1896, in Plessy v. Ferguson, the Supreme Court upheld the constitutionality of state laws requiring racial segregation in public facilities such as railroad cars by a seven to one ruling. Judicial restraint "encouraged" the judges to let stand the fractious doctrine of "separate but equal." This remained the law of the land until the 1954 Supreme Court decision Brown v. Board of Education. The Warren Court in Brown voted nine to zero that separate public schools for White students and Black students are unconstitutional. Under Chief Justice Earl Warren (1953–1969), separate is inherently unequal, a violation of the Bill of Rights, and the rulings of the Court paved the way for a slew of Civil Rights Acts to follow. The Warren Court’s approach of judicial review resulted in activism relevant to scrutinizing and overturning state and federal statutes of those excluded from integration and the political process.
Judicial Restraint Today
The legacy of the Warren Court was to force proofs that legislation, rules, and regulations stand up to the strict scrutiny of constitutional review upholding and ensuring individual and human rights. For some four decades after Chief Justice Warren, subsequent court decisions created new law with rulings protecting the politically unpopular, powerless minorities, and those victimized by racial and religious discrimination. The courts struck down voting and reapportionment barriers. Regarding criminal procedures, the courts required the government to provide an attorney for the indigent, read suspects their rights (Miranda rights), and ensure a right to privacy. This period of judicial activism cut across fields of law and political sensitivities on such matters as obscenity, contraception, interracial marriage, states’ rights, and prisoners’ rights. In two later cases of judicial activism, Roe v. Wade (1973) and Doe v. Bolton (1973), the Supreme Court ruled by a wide majority that under the Due Process Clause of the Fourteenth Amendment, a woman essentially has the right to make choices for her own health and welfare above and beyond the rights of government. Many practicing law call this the period of judicial supremacy because judicial restraint decayed, changing the debate from who should interpret the Constitution to a debate about how the Constitution should be interpreted.
Judicial activism gave way in the mid-1980s to more judicial restraint with the courts less inclined to overturn federal and state statute, according to leading legal observer Richard Posner. Judicial restraint continued to be a significant element in Supreme Court and federal courts’ decisions into the twenty-first century. When John Roberts spoke before the Senate confirmation hearings in 2005, he affirmed his belief in judicial restraint, or judicial modesty as he called it. Chief Justice Roberts rejected the claim the government can force the public to buy health insurance, but he did find the Affordable Care Act (Obamacare) to be lawful under the Constitution’s authority to have Congress "lay and collect taxes." Roberts was the swing vote in the five to four decision. He employed the approach of judicial restraint by interpreting federal statutes granting the right of the government to impose a health-care tax. His admirers praise Roberts for his principled restraint. Critics of Justice Roberts denounce him for imposing his personal preferences on the law and for not respecting the separations between branches of government.
History has proven that the language of the Constitution can be interpreted many ways. For decades it was used to justify slavery and Jim Crow laws under the guise of judicial restraint. Today judicial restraint is condemned as a deeply flawed policy that forces people to make choices others believe the Constitution forbids. The court’s role is to ensure the system of checks and balances works to protect the people, but they have no popular mandate. Judicial restraint operates to bridge democracy and liberty and continues to help garner support and respect for court decisions.
Bibliography
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Kens, Paul. "The Constitution and Business Regulation in the Progressive Era: Recent Developments and New Opportunities. " American Journal of Legal History 56.1 (2016): 97-103. Print.
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