4.3 Judicial activism and restraint

Judicial activism and restraint are two competing philosophies that shape how judges interpret laws and make decisions. Activists believe in adapting the Constitution to modern times, while restraintists favor strict adherence to original intent and precedent.

The debate between these approaches impacts key issues like separation of powers, individual rights, and legal stability. A judge's philosophy can significantly influence court rulings, with implications for the judiciary's role in American democracy and policymaking.

Defining judicial activism and restraint

• Judicial activism refers to a philosophy of judicial decision-making where judges allow their personal views about public policy to guide their decisions
• Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power and emphasizes deference to the decisions of the elected branches of government
• The debate between judicial activism and restraint is central to understanding the role of the judiciary in the American political system and its relationship to the other branches of government

Origins of judicial activism and restraint

• The roots of the debate over judicial activism and restraint can be traced back to the early days of the American republic and the establishment of the principle of judicial review in Marbury v. Madison (1803)
• The tension between an active judiciary and a restrained one has been a recurring theme throughout American legal history, with different eras and courts embracing different approaches
• The labels of "judicial activism" and "judicial restraint" gained prominence in the mid-20th century as a way to describe and critique the decision-making of the Supreme Court, particularly in the context of the Warren Court's expansive rulings on civil rights and liberties

Key differences between approaches

Interpreting the Constitution

• Judicial activists believe in a living Constitution that should be interpreted in light of current societal conditions and evolving understandings of justice
• Advocates of judicial restraint favor originalism, interpreting the Constitution based on its original meaning or the intent of the Framers
• Activists are more willing to find new rights and liberties in the Constitution, while proponents of restraint argue that such rights should be established through the democratic process

Deference to other branches

• Judicial restraint emphasizes deference to the policy decisions of elected officials in the legislative and executive branches
• Activists are more willing to strike down laws and actions by other branches if they believe they violate constitutional principles
• The degree of deference to other branches is a key point of contention between activists and proponents of restraint

Overturning precedent

• Judicial activists are generally more willing to overturn legal precedent if they believe it was wrongly decided or no longer fits with current understandings
• Advocates of restraint place a higher value on stare decisis, the legal principle of respecting and upholding precedent to maintain stability and predictability in the law
• The role of precedent and when it should be overturned is a significant difference between the two approaches

Prominent examples of judicial activism

Lochner era decisions

• In the early 20th century, the Supreme Court struck down numerous economic regulations as violations of freedom of contract, exemplified by Lochner v. New York (1905)
• These decisions, now widely criticized, are seen as prime examples of judicial activism in service of a laissez-faire economic philosophy
• The Lochner era ended with the Court's acceptance of New Deal legislation in the late 1930s

Warren Court rulings

• The Warren Court (1953-1969) issued a series of landmark rulings expanding civil rights and liberties, including Brown v. Board of Education (1954) on school desegregation and Miranda v. Arizona (1966) on police interrogations
• Critics accused the Warren Court of engaging in judicial activism by reading new rights into the Constitution and overturning longstanding practices
• Supporters argue that the Warren Court's activism was necessary to address injustices and protect individual rights

Recent Supreme Court cases

• The Supreme Court's decisions in Citizens United v. FEC (2010) on campaign finance regulation and Shelby County v. Holder (2013) on voting rights have been criticized as examples of conservative judicial activism
• The Court's rulings on issues like same-sex marriage (Obergefell v. Hodges, 2015) and abortion (Whole Woman's Health v. Hellerstedt, 2016) have also been labeled activist by some observers
• These cases illustrate how charges of judicial activism are often in the eye of the beholder and can come from different ideological perspectives

Prominent examples of judicial restraint

New Deal era decisions

• After initial resistance, the Supreme Court began upholding New Deal economic legislation in the late 1930s, exemplified by cases like West Coast Hotel v. Parrish (1937) and NLRB v. Jones & Laughlin Steel Corp. (1937)
• These decisions represented a shift toward judicial restraint and deference to the political branches on economic policy
• The Court's acceptance of the New Deal and move away from Lochner-style activism set the stage for a period of general restraint in the mid-20th century

Rehnquist Court rulings

• The Rehnquist Court (1986-2005) is often associated with judicial restraint, particularly in its federalism decisions limiting the power of the federal government vis-a-vis the states
• Cases like United States v. Lopez (1995) and United States v. Morrison (2000) struck down federal laws as exceeding congressional authority under the Commerce Clause
• The Rehnquist Court's emphasis on federalism and its skepticism of broad federal power are seen as examples of judicial restraint

Recent Supreme Court cases

• The Supreme Court's decision in National Federation of Independent Business v. Sebelius (2012) to uphold the individual mandate of the Affordable Care Act under the taxing power, while rejecting the Commerce Clause justification, is sometimes cited as an example of judicial restraint
• In Levin v. Commerce Energy, Inc. (2010), the Court invoked the principle of comity to state courts and declined to intervene in a state tax dispute, demonstrating restraint in federal-state relations
• These cases show how judicial restraint can manifest in different contexts and how the Court's approach can vary depending on the specific issue and legal question before it

Debates over activism vs restraint

Impact on separation of powers

• Critics of judicial activism argue that it undermines the separation of powers by allowing unelected judges to make policy decisions that should be left to the political branches
• Defenders of activism counter that the judiciary has a vital role in checking the other branches and that judicial review is necessary to protect individual rights and enforce constitutional limits
• The debate over the proper balance of power between the branches is a central theme in discussions of activism and restraint

Accusations of legislating from bench

• Opponents of judicial activism often accuse activist judges of "legislating from the bench" by reading their own policy preferences into the law
• They argue that judges should interpret the law as written and leave policymaking to elected officials who are accountable to the people
• Supporters of activism reject this characterization, arguing that interpreting the law necessarily involves judgment and that the Constitution's broad principles require adaptation to new circumstances

Protecting individual rights

• Advocates of judicial activism emphasize the important role of the courts in protecting individual rights, particularly those of minorities who may face difficulties in the political process
• They argue that an active judiciary is necessary to check majoritarian excesses and ensure that constitutional rights are protected
• Critics counter that the courts should not be a substitute for the democratic process and that judicial activism can lead to the imposition of elite values on the public

Maintaining legal stability

• Proponents of judicial restraint argue that respect for precedent and a limited judicial role are necessary to maintain stability and predictability in the law
• They warn that frequent overruling of precedent and dramatic shifts in legal doctrine can undermine public confidence in the courts and the rule of law
• Defenders of activism respond that the law must be able to adapt to changing circumstances and that an overly rigid adherence to precedent can perpetuate injustice

Factors influencing judicial approach

Judicial philosophy of justices

• The individual judicial philosophies of Supreme Court justices can have a significant impact on their approach to activism or restraint
• Some justices, like William Brennan and Thurgood Marshall, have been associated with a more activist approach, while others, like Felix Frankfurter and John Roberts, have emphasized judicial restraint
• A justice's views on constitutional interpretation, the role of the courts, and the proper scope of judicial power shape their stance on activism and restraint

Political and social context

• The broader political and social context of a given era can influence the degree of activism or restraint exhibited by the courts
• In times of social upheaval or political gridlock, the courts may feel more pressure to take an active role in addressing pressing issues
• Conversely, in periods of relative stability or strong political consensus, the courts may be more inclined to defer to the other branches

Nature of cases and controversies

• The specific nature of the cases and controversies that come before the courts can also shape the judicial approach
• Cases involving deeply contested social and political issues, such as civil rights or abortion, may be more likely to elicit an activist response from the courts
• More technical or procedural cases may be more conducive to a restrained approach that emphasizes adherence to established legal principles and deference to other actors

Evolving attitudes toward activism and restraint

• Attitudes toward judicial activism and restraint have evolved over time, reflecting changes in legal theory, political alignments, and societal values
• In the early 20th century, judicial activism was often associated with conservative economic policies, while restraint was linked to progressive deference to legislative action
• By the mid-20th century, activism had become more closely tied to liberal rulings on civil rights and individual liberties, while restraint was embraced by conservatives skeptical of the Warren Court's decisions
• In recent decades, the activism/restraint divide has become more complex, with charges of activism coming from both ends of the political spectrum and disagreement over what constitutes activism in particular cases
• The ongoing debate over the proper role of the judiciary highlights the enduring tension between activism and restraint in American legal culture

Implications for the role of judiciary

• The debate over judicial activism and restraint has significant implications for the role of the judiciary in the American constitutional system
• An activist judiciary can serve as a powerful force for social and political change, using the law to address injustices and protect individual rights
• However, critics warn that an overly activist judiciary can undermine democratic self-governance, substitute judicial policymaking for legislative decision-making, and erode the legitimacy of the courts
• A restrained judiciary, on the other hand, may provide greater stability and predictability in the law, and reinforce the separation of powers by respecting the prerogatives of the other branches
• But taken to an extreme, judicial restraint can lead to a judiciary that is too passive in the face of abuses of power or violations of constitutional rights
• Ultimately, the challenge is to strike a balance between activism and restraint that allows the judiciary to fulfill its constitutional role as an independent check on the other branches, while still respecting the limits of the judicial power and the value of democratic decision-making
• The ongoing debate over judicial activism and restraint reflects the difficulty of finding this balance and the enduring tensions inherent in the American constitutional system.