Judicial restraint

Judicial restraint (or strict constructionist) can be defined as a condition in which members of the Supreme Court interpret the Constitution on a literal basis. Whereas judicial activism empowers members of the hallowed bench, judicial restraint seeks to limit their actions. Supporters claim that this is in keeping with the original intentions of the founding fathers and their fears concerning the potential abuse of power. In the words of the Supreme Court Chief Justice John Roberts “judges are like umpires. Umpires don’t make the rules: they apply them.”

Supporters of judicial restraint over judicial activism claim that those who wield power in whatever form must be answerable in some manner for their actions. The inherent flaw with judicial activism is that judges can pass judgments over which they have no direct accountability for. The public cannot remove a member of the judiciary in the same manner as an elected representative. As such, the actions of a judge should be limited to that of an umpire at a ball game rather than as one of the players.

From the opposing angle, judicial activism could be justified on the end result. In other words, the result of a judgment made on the basis of activism might be a more tolerant and socially just America. One would only have to consider Brown v. Board of Education (1954). This landmark ruling was taken at a time when many members of Congress were reluctant to support de-segregationist policies. By taking the Brown judgment on a unanimous basis, members of the Supreme Court did a tremendous service to the cause of a more progressive society. However, this whole argument depends in part upon your own ideological stance upon the desirability of a more tolerant society. In most examples, liberals would be more supportive than conservatives. Perhaps the clearest illustration within contemporary society is the vexed issue of gay marriage.

As one might anticipate, both activism and restraint have enjoyed periods of ascendancy. From the 1950s until the 1970s, judicial activism characterized both the Warren Court and the Burger Court (although Burger himself was a conservative figure). Capital punishment was even ruled unconstitutional during that time. In the case of Furman v. Georgia (1972) the Supreme Court ruled that the death penalty constituted “cruel and unusual punishment,” and was therefore in violation of the eighth amendment. Other liberal interpretations concerned abortion on demand and the issue of transporting children to different schools. Since the 1980s the Court had shifted towards a stance of judicial restraint.

If we employ a continuum with politics at one end and law at the other; judicial activism (regardless of its ideological character) takes judges more towards the political end whereas judicial restraint leans towards a purely legal end. The first option serves to empower judges whereas the other seeks to constrain the judiciary. Ultimately, this is the most important consequence of all between judicial activism and judicial restraint. Activism invariably politicizes the judicial branch of government, whereas restraint seeks to avoid that. Whether or not this is a good or bad thing depends entirely upon where you stand ...