Judicial Restraint Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Judicial restraint is too often simply an endorsement of a judge who upholds a democratically enacted law on constitutional grounds. If the term is only a way to agree with a judge’s decision, it has little jurisprudential value. After all, the role of a judge in the system of judicial review is to uphold laws that are constitutional and strike down ones that are not. Judicial restraint means more than simply upholding a democratically enacted law just as judicial activism means more than simply invalidating one. The term implicates a court’s role in a constitutional system.

Higher Versus Lower Lawmaking

Like judicial activism, much of the debate about judicial restraint is confused with the debate on the “correct” theory of constitutional interpretation. That is, references to judicial restraint often simply turn out to be a proxy for a static, conservative theory of interpretation, one generally associated with originalism. This confusion is belied by empirical work on judicial behavior, which shows that liberal judges may be just as likely to uphold legislation as their conservative counterparts. Whereas a conservative judge may be more likely to uphold laws that infringe sexual freedom or expand executive power, the liberal counterparty may be more likely to do so when laws infringe property or benefit racial minorities.

Other authors avoid this confusion by seeing judicial restraint as simply a prescription that courts should show a large degree of deference to democratically elected or majoritarian institutions. These theories are borne from the larger counter majoritarian problem, articulated most comprehensively by Alexander Bickel, who proposed restraint and the passive virtues as ways of mitigating the antidemocratic tendencies of judicial review. While this meaning of judicial restraint does not collapse it into a theory of interpretation, it seems to equate judicial restraint simply with the frequency or likelihood with which a court upholds laws.

Such an understanding of judicial restraint has been criticized as insufficient, because it fails to capture the normative implication of the term, namely that the court has opted not to fulfill its constitutional duty. In contrast with Bickel’s characterization of judicial review as antidemocratic, Bruce Ackerman distinguishes between higher and lower lawmaking. The heightened degree of democratic deliberation that enters into drafting and ratifying a constitution or constitutional amendment distinguishes those documents as more genuinely democratic than the typical laws and policies of a government. The highest court of a democracy has a duty, on this view, to invalidate those laws and polices—lower lawmaking—that conflict with the constitution, the higher law. Judicial restraint occurs when the court refuses to perform this role and refuses to strike down a law, even though the judges may very well see the legislation as unconstitutional with their theory of interpretation. This primarily happens (though this is not an exhaustive list) when: (1) a judge decides not to review the case; or (2) a judge decides for political reasons that it is better overall not to strike down a possibly unconstitutional law.

Refusal To Review

First, and this is a more subtle type of judicial restraint, a judge may simply refuse to hear a case. For instance, the U.S. Supreme Court hears only about 2 percent of all cases that come before it.This process of certiorari means that the court will review petitions from thousands of cases, but only select a few to hear and review. Individual justices may have their own reasons for practicing this kind of judicial restraint. Because a justice does not need to publish or justify a decision not to review, these reasons need not be constitutional or even legal in nature.

The court often declines to judge a case if it poses a delicate political question or one that lacks a judicially enforceable rule, even if a constitutional issue is at stake. In Luther v. Borden (1849), two factions claimed to represent the legitimate government of Rhode Island. The court refused to decide that issue, reasoning that its disposition was too political because the president had already sided with one of the factions.

Refusal To Strike Down

Second, and this is the more obvious type of judicial restraint, a judge may refuse to strike down a law because it may provoke some kind of backlash. In this case, even though a judge believes the law may be unconstitutional, that judge declines to invalidate it, reasoning that doing so may cause more harm than good. Though Brown v. Board of Education (1954) struck down the doctrine of “separate but equal,” the decision failed to integrate schools in the short term, perhaps even fueling racist sentiments in the long run. Political scientist and legal scholar Gerald Rosenberg famously argues that the decision did not have the force that is often attributed to it; rather, Brown led to more retrenchment from the South. In reply,

Derrick Bell, a constitutional scholar, contends that if he had been a justice on the court, he would have likely upheld separate but equal, even though he concedes that such segregation is unconstitutional. He argues that practicing such judicial restraint would have been better for racial minorities in the long run precisely because it would not have invited the backlash that Brown did.

In another example, the California Supreme Court struck down that state’s ban on same-sex marriage in 2008. Californians in turn passed Proposition 8, an amendment to the state constitution overturning the court decision. The amendment enshrines the prohibition on same-sex marriage at the constitutional level. Before the state supreme court decided the case, the prohibition was merely statutory. In this way, judicial intervention may have injured the cause of same-sex marriage. One of the dissenting judges in the California opinion— considering the possibility of such an antigay backlash— suggests that judicial restraint may be a better strategy of furthering the cause of gay and lesbian equality (Judge Carol Corrigan, dissenting opinion, In re Marriage Cases at 8). This kind of judicial restraint trades any short-term gain for long-term results. It requires that the judge consider the deleterious effects of invalidating a possibly unconstitutional law.

Bibliography:

Ackerman, Bruce, ed, Bush v. Gore:The Question of Legitimacy New Haven, Conn.:Yale University Press, 2001.
Amar, Akhil. The Bill of Rights: Creation and Reconstruction. New Haven, Conn.:Yale University Press, 1998.
Bell, Derrick. Dissenting Opinion in What Brown v. Board of Education Should Have Said:The Nation’s Top Legal Experts Rewrite America’s Landmark Civil Rights Decision. Edited by Jack M. Balkin. New York: New York University Press, 2001.
Bickel, Alexander M. The Least Dangerous Branch:The Supreme Court at the Bar of Politics. 2nd ed. New Haven, Conn.:Yale University Press, 1986.
Breyer, Stephen. Active Liberty: Interpreting Our Democratic Constitution. New York: Knopf, 2005. Brown v. Board of Education of Topeka, 347 US 483 (1954).
Ely, John. Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press, 1980.
Epstein, Lee, and Jack Knight. The Choices Justices Make. Washington D.C.: Congressional Quarterly Press, 1998.
In re Marriage Cases, 43 Cal. 4th 757 (California 2008).
Kellogg, Frederic R. Oliver Wendell Holmes Jr., Legal Theory, and Judicial Restraint. Cambridge: Cambridge University Press, 2007.
Kramer, Larry D. The People Themselves: Popular Constitutionalism and Judicial Review. New York: Oxford University Press, 2004. Luther v. Borden, 48 U.S. 1 (1849).
Rosenberg, Gerald. The Hollow Hope: Can Courts Bring about Social Change? Chicago: University of Chicago Press, 1993.
Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton, N.J.: Princeton Press, 1997.
Segal, Jeffrey A., and Harold J. Spaeth. The Supreme Court and the Attitudinal Model Revisited. Cambridge: Cambridge University Press, 2002.
Whittington, Keith E. Constitutional Interpretations:Textual Meaning, Original Intent, and Judicial Review. Lawrence: University of Kansas Press, 1999.

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