Judicial Restraint

Understanding Judicial Restraint

  • Judicial Restraint is a legal theory that judges should limit the use of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional.
  • It’s often contrasted with judicial activism, which encourages judges to apply the Constitution to social and political questions, even if that means striking down laws as unconstitutional.
  • Advocates for judicial restraint believe judges should respect the decisions made by elected lawmakers and should defer to their expertise in areas of policy.
  • They also feel the judiciary should avoid entering political questions and adhere closely to constitutional text and original intent, leaving policy decisions to the elected branches of government.

Origins and Development of Judicial Restraint

  • The concept of judicial restraint traces its roots back to Chief Justice John Marshall who believed in maintaining the integrity of laws and constitutionally granted powers.
  • In modern times, judicial restraint is often associated with conservative legal philosophies. However, it can be a principle adopted by any judge who respects the law-making authority of elected representatives.

Judicial Restraint in Practice

  • An example of judicial restraint is the case Plessy v. Ferguson (1896). The U.S. Supreme Court upheld a racially discriminatory law, respecting the decisions made by elected lawmakers rather than imposing their own judgement.
  • Another example includes the Rehnquist Court’s (1986-2005) respect for state sovereignty laws and the concept of federalism. This Court emphasized judicial restraint by often leaving complex social issues up to the states.

Criticisms of Judicial Restraint

  • Critics argue that judicial restraint can lead to the perpetuation of social injustices, as judges refrain from overturning unjust laws or policies.
  • Conversely, strong adherence to judicial restraint can also defer too much to legislative authority, limiting the courts’ role in checks and balances.
  • While judicial restraint advises deference to the lawmakers, it does not provide a thorough guide when statutes conflict or when legislative intent is unclear.