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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

J, Judicial Self-Restraint,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 09 July 2020

Judicial Self-Restraint,

most often associated with the Supreme Court’s exercise of judicial review, is a general term covering several related ideas, each counseling the Court to tailor its power to fit two fundamental constitutional principles: *separation of powers and republican authority. By the former principle, the Court should distinguish itself from the legislature and executive by limiting itself to the resolution of concrete cases and controversies according to given standards of law. The Court should not, that is, decide a dispute if there is no concrete injury to be relieved by a judicial decision (“*standing”), if the conflict between parties is a matter of contingency rather than actuality (“*ripeness”), if the real conflict has already passed (“*mootness”), and if there is no genuine case presented in an adversary proceeding, but a mere request for an opinion on a legal question (“*advisory opinions”). Nor should the Court resolve a dispute if no judicially manageable standard is to be found in the Constitution, nor if the matter has been committed by the Constitution to another branch of government (“*political questions”), impeachment being the clearest example of the latter.

Similarly, the Court should not thwart republican authority except as required by its judicial function. Following this line of thought, Justice Louis *Brandeis urged several maxims in *Ashwander v. TVA (1936) (concurring): “The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it.’ The Court will not ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ The Court will not pass upon a constitutional question … if there is also present some other ground upon which the case may be disposed of. … ‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, [the] Court will first ascertain whether a construction is fairly possible by which the question may be avoided.’”

Beyond these somewhat technical doctrines, separation of powers and republican authority also ground more common usages of the term “judicial restraint.” Echoing Montesquieu’s dictum that judges are to be “only the mouth that pronounces the words of the law, inanimate beings who can moderate neither its force nor its rigor,” perhaps the most widely used sense of the term stresses that justices are not to confuse their own ideas of right with the Constitution; to enact new ideas into law is a legislative, not a judicial function. Often this emphasis on fidelity is allied with the idea that the true meaning of the Constitution is its original meaning. While long the orthodoxy in constitutional law, original meaning is now met with a host of competitors. Without assessing the merits of these competing theories, it seems apparent that one can in good faith counsel constitutional fidelity, distinguish the Constitution from one’s personal beliefs, and yet hold the true meaning of the Constitution not to be its original one. For this reason, the term judicial restraint may conceal what is at stake in a debate over constitutional meaning.

Probably the most straightforward usage of judicial restraint identifies it with “deference” to republican authority. Congressmen and presidents, this doctrine observes, are charged by their oaths of office to enact only such laws as they (p. 543) believe conform to the Constitution. Further, most constitutional clauses permit a range of meaning over which reasonable people might differ. Thus, when a justice considers a law that fits within this range of reasonable interpretation, respect for republican authority requires that he or she should “defer” to the legislature’s assessment of its constitutionality. Only when the legislature has made a “clear mistake,” should the justices hold the law void. An additional argument for deference holds that in the long run constitutional principles are secure only if the people and their representatives support them and understand their own responsibility for doing so. An easy recourse to judicial review and a casual exercise of it will tend, as Professor James Bradley Thayer famously maintained in 1901, “to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.”

Although all of these meanings of judicial restraint share a concern for an essentially judicial function and a respect for republican authority, they can diverge, especially those of “original meaning” and “deference.” Consider, for example, the case of *Rochin v. California (1952), where police obtained evidence of morphine possession by pummeling Mr. Rochin and then against his will having a physician pump his stomach. Justice Felix *Frankfurter, an advocate of restraint as deference, held for that Court that the evidence could not be admitted. He so held not because admission would violate the original meaning of a specific provision, but because it would clearly violate fundamental decency, what an earlier opinion had referred to as principles “so rooted in the tradition and conscience of our people as to be ranked fundamental,” often concisely stated as the principle of “ordered liberty.” Justice Hugo *Black, a forceful exponent of restraint as adherence to original meaning, sharply criticized the majority’s reasoning as “nebulous,” totally wanting in authority for nullifying state acts, and ultimately a threat to the *Bill of Rights itself. Justice Black found firmer authority in the *Fifth Amendment’s command that “No person shall be compelled to be a witness against himself”—though for the majority, equating testimony with vomitus and attributing this result to the framer’s intent was far-fetched.

In Rochin, the advocates of “deference” and “original meaning” converged in result; elsewhere, as in *Griswold v. Connecticut (1965), they would diverge. That case involved an attack on Connecticut’s rarely enforced ban on the use of contraceptives as applied to married couples. Black dissented from the majority’s decision to nullify this law, arguing, “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” Justice John Marshall *Harlan, by contrast, representing restraint as deference, concurred in the result. He admitted that nothing specific in the Constitution covered this issue and urged a general posture of deference that acknowledged a broad range of state authority to cultivate the morals of its citizens; yet as applied to married couples, he argued, this law violated principles of ordered liberty. Arguments of both original meaning and deference would oppose the right to abortion affirmed in *Roe v. Wade (1973), by these measures, one of the most “activist” cases of the twentieth century.

In the popular mind, judicial restraint and its opposite, *judicial activism, are often linked to political liberalism or conservatism, but in the long view there really is no intrinsic connection. The actual term “judicial restraint” was first used on the Supreme Court by Justice Harlan Fiske *Stone in his 1936 dissent in United States v. *Butler, where he accused the majority of voiding *New Deal legislation due to policy disagreements. Lack of restraint, or activism, soon became a charge lodged against the previous two generations of property protective, conservative, jurisprudence limiting populist and progressive legislation, above all against the “liberty of contract” decision of *Lochner v. New York (1905). During the Warren and Burger eras, the charge of activism was lodged against a host of decisions with politically liberal outcomes in race relations, criminal procedure, religious liberty, gender classifications, voting rights, freedom of speech, and what has become called “privacy.” Although this legacy of liberal activism has continued under the Rehnquist Court with decisions affirming gay rights (*Romer v. Evans, 1996; *Lawrence v. Texas, 2003) and voiding gender classifications (United States v. *Virginia, 1996, the VMI case), more commonly this Court has been charged with conservative activism, especially in the area of federalism. Here the Court declared federal law void for the first time since the New Deal for exceeding the authority to regulate interstate commerce (*Lopez v. United States, 1995), holding that the mere possession of a gun near a school district is not commercial in character). It also has found new force in structure-based claims of state sovereignty (*Printz v. United States, 1997), and has revived and expanded the doctrine of state sovereign immunity (*Seminole Tribe of Florida v. Florida, 1996). And, of course, criticism of *Bush v. Gore (2000) as conservative activism has become a cottage industry.

Though popular usage often reflects merely whose ox is being gored, the set of ideas associated with judicial restraint are firmly rooted in the philosophy of the constitution. And, (p. 544) as implied by the arguments supporting it, judicial restraint is widely regarded as a term of praise, and activism, a term of criticism. Some commentators have attempted to attach more negative connotations to restraint, especially in the sense of deference, by calling it “judicial timidity” or “judicial passivism.” The failure of such terms to take hold in constitutional discourse is perhaps further evidence of how deeply woven into the constitutional discourse is the concept of judicial restraint.

Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962). Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990). Ronald Dworkin, Law’s Empire (1986). Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999).

Stanley C. Brubaker