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 Judicial restraint is a theory of judicial interpretation—a theory of how judges interpret laws. Like most abstract theories, definitions vary slightly according to different sources. In general, judicial restraint is the concept of a judge not injecting his or her own preferences into legal proceedings and rulings.[1][2] Judges are said to exercise judicial restraint if they are hesitant to strike down laws that are not obviously unconstitutional. It is considered the opposite of judicial activism (also referred to as "legislating from the bench"). 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. 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. Opponents argue that activism is a necessity when the other branches of government do not act to bring about social change. Some opponents of judicial restraint include William J. Brennan and Ronald Dworkin. 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.) DefinitionsJudicial restraint is a complex concept, and the definition of the term itself varies slightly according to different sources. Additionally, the theory includes complicated terms and rules such as "stare decisis" and "Plain Meaning Rule." Such definitions and terms are listed below. Judicial restraintThe term "judicial restraint" has a number of definitions. Some of these are listed below: Auburn UniversityThe Glossary of Political Economy Terms, published by Auburn University, gives the following definition of judicial restraint:
Eastern Michigan UniversityThe Fundamentals of Judicial Philosophy, published by Eastern Michigan University, gives another definition:
Marquette University Law SchoolNationally renowned legal expert Rick Esenberg wrote the following about judicial restraint:
Legislative intent
...is a legislature's practice of enacting new legislation on the grounds of judicial precedence. The term also refers to the legislature’s intentions in enacting a bill into law—frequently determined by studying the details of the legislative history. Stare decisisMain article: Stare decisis...is Latin for "to stand by that which is decided." The term is used to describe the legal principle dictating that precedents (previously argued cases and court decisions) are to be consulted in determining verdicts for subsequent cases. As a general rule, 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 in future decisions. Stare decisis is not always relied upon, however, and courts sometimes find it necessary to overrule precedents when cases have been hastily decided or when they stand contrary to principle. Plain Meaning RuleMain article: Plain Meaning Rule...also known as the literal rule, is an approach to judicial interpretation favored by judges who believe that statutes and laws should be interpreted to mean what the ordinary meaning of the language suggests. In other words, the law is to be read and interpreted in a common-sense, ordinary way, without elaborate or sophisticated interpretations that are at odds with what the plain meaning of the law says. Textualists favor the Plain Meaning Rule. Strict constructionismMain article: Strict constructionism...is a legal theory that promotes the limitation of judicial interpretation only to the written letter of the law. TextualismMain article: Textualism...is a theory of statutory interpretation favored by judges who believe that the original meaning of a statute's text—rather than a historical source that is pulled in an attempt to determine underlying legislative intent—is the best source for interpreting that statute.[4] Textualism is consistent with the Plain Meaning Rule, which says that interpreters of statutes should interpret a statute according to its "plain meaning." Judicial interpretationMain article: Judicial interpretation...refers to how a judge interprets laws. There is much variation in judicial interpretation across the states, with some judges favoring judicial restraint (advocating for interpretations that hold up to the Plain Meaning Rule) and others favoring judicial activism ("legislating from the bench"). Other theories of judicial interpretation, in addition to judicial restraint and activism, include:
Famous casesRestraintThe following cases are examples of judicial restraint:
ActivismThe following cases are some in which judicial restraint was not practiced, or where judicial activism was practiced.
Opinions on judicial restraintArguments in favorThose in favor of judicial restraint argue that:
AdvocatesThomas JeffersonIn an 1825 letter to Edward Livingston, Thomas Jefferson expressed strong views in favor of judicial restraint:
Learned HandBillings 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 2nd Circuit from 1924 to 1961. He was also a judicial philosopher and a leading proponent of judicial restraint.[7] According to the New York Times, Hand "was committed to neither a conservative nor a liberal agenda, but to a creed of judicial restraint he had learned at Harvard Law School from J.B. Thayer and had reinforced by his own experience of democracy."[8] Hugo BlackHugo 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 for 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."[9][10] Arguments opposedThose opposed to judicial restraint (and favoring judicial activism) argue that:
OpponentsWilliam J. BrennanWilliam Brennan served as an associate justice on the U.S. Supreme Court from 1956 to 1990. 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:
Ronald DworkinDworkin was a philosopher who studied 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 believed in an interpretivist approach to law and morality.[12] Other theoriesIn addition to judicial activism and judicial restraint, other theories of judicial interpretation include:
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Footnotes
What is judicial activism and restraint?Judicial activism is the assertion (or, sometimes, the unjustified assertion) of the power of judicial review to set aside government acts. Judicial restraint is the refusal to strike down such acts, leaving the issue to ordinary politics.
How are judicial activism and judicial restraint similar?Judicial activism is the interpretation of the Constitution to advocate contemporary values and conditions. Judicial restraint is limiting the powers of the judges to strike down a law.
What is the main idea of judicial activism?By definition, judicial activism describes how a justice approaches judicial review, where judicial activists abandon their responsibility to interpret the Constitution and instead decide cases to advance their preferred policies.
What are examples of judicial activism and restraint?Examples of cases where the Supreme Court favored judicial restraint include Plessy v. Ferguson and Korematsu v. United States. In Korematsu, the court upheld race-based discrimination, refusing to interfere with legislative decisions unless they explicitly violated the Constitution.
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Which ideas connects to judicial activism and which connects to judicial restraint
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