What is the job of a judge, and how should he or she go about it? Is it only to interpret and apply the law, or is their role to “do justice”? The answers to these questions are important because the law affects many parts of our daily lives. Therefore, how it is applied is critical.
The American system of government involves three separate branches: the legislature, the judiciary, and the executive branch. A key part of this tripartite system is the concept of separation of powers. This doctrine prevents any branch from exercising the core functions of another branch, to prevent the undue concentration of power. One example of this principle is the saying that judges should not “legislate from the bench.”
The simplest definition of judicial restraint
Under the simplest definition of judicial restraint, a judge’s job is to be an impartial interpreter of the law. Judicial restraint means judges should not allow their political beliefs or policy preferences to influence their rulings. Instead, they should apply the law as it is, not as they believe it should be. They should also be reluctant to strike down laws unless they are plainly unconstitutional or conflict with established authority. (For example, state election laws may be invalid if they conflict with the Voting Rights Act.)
Making political or policy choices goes the argument in favor of judicial restraint, which is the job of the legislature, not the judicial branch. The separation of powers doctrine demands that judges stay out of policymaking.
Judicial restraint proponents say that the job of a judge is to interpret the law, with no reference to their own beliefs. Critics say that strict adherence to this ideal is impossible. They point out that in the face of vague statutes providing little guidance to the courts, judges have no choice but to make policy choices — that is, to make law, or at least to interpret the law in a way that inevitably affects policymaking. Further, the legally allowed (and necessary) exercise of judicial discretion cannot take place in a vacuum. A judge’s discretionary choices, they say, cannot be separated from their philosophical views on how our society should function, and what the roles and responsibilities of individuals corporations, and the government should be.
A Nineteenth-Century Approach: Justice Holmes and the Failure of Judicial Restraint
Former Associate Justice of the United States Supreme Court Oliver Wendell Holmes, Jr. put it this way in his famous book The Common Law:
“The life of the law has not been logic; it has been experienced…. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than [logic] in determining the rules by which men should be governed.” (bracketed material added)
What Justice Holmes is saying in this passage is that judges cannot help being influenced, consciously or unconsciously, by their politics, their morality, the needs of society as a whole, and their public policy preferences. At least where there is no clear right answer, judicial restraint does not work.
Sixteen years later, in a Harvard Law Review article called “The Path of the Law,” Justice Holmes went even further:
“I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate and often unconscious. I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious.”
In other words, judges have a duty to consider explicitly the public policy consequences of their actions. If they fail to do so, they cannot explain adequately the bases of their decision. They may even act unconsciously, because they refuse to acknowledge the underlying reasons, which are inconsistent with judicial restraint, according to Justice Holmes.
Justice Powell’s more complex view of judicial restraint
In 1990, three years after his retirement from the United States Supreme Court, former associate justice Lewis F. Powell Jr. delivered a lecture entitled “Stare Decisis and Judicial Restraint” at the Washington and Lee Law School. Stare decisis is the rule that requires courts to follow precedent, applying the same legal rules in which the operative facts are similar. It is important because it eliminates the need to reconsider every prior case when a similar scenario comes before the Court. It also gives lawyers and lower court judges stability and predictability
when preparing for cases. Though stare decisis is not absolute at the Supreme Court level, even there it is greatly respected. Devotion to stare decisis is one aspect of judicial restraint. Justice Powell argues that judicial restraint encompasses much more than refraining from the imposition of one’s own political, moral, and policy prejudices onto the law:
“[Judicial restraint] means recognition that the Court’s function is to decide cases involving specific issues and particular parties. The Court does not sit to make announcements of abstract principles or to give advisory opinions…[T]he Court should focus specifically on the particular facts of the case and the questions properly presented. Too often, Justices write more broadly than necessary to decide the case before the Court…
Related aspects of judicial restraint that promote a modest model of adjudication include attention to the rules of standing. The Court also should hesitate to create new areas of judicial oversight, such as where the Court is asked to infer private rights of action in statutes. Deference to bodies that may be more expert in a particular field, such as school boards and the military, is also appropriate. Intelligent use of certiorari jurisdiction will allow the Court to avoid precipitous judgments in new areas of the law that the Court later may regret” (bracketed material added; footnotes omitted).
Interestingly, Justice Powell does not even discuss whether judges should allow their personal political, moral, or policymaking preferences to enter into the decision-making process. Whether he agrees with Justice Holmes that the goal is an undesirable and unattainable one, assumes that everyone knows that avoiding personal preferences is part of judicial restraint, or somehow excludes these factors from his definition of the concept altogether is not clear. What is clear is that for Justice Powell, a number of concrete actions combine to constitute appropriate judicial restraint:
* Adherence to stare decisis in all but exceptional cases. Justice Powell notes that of the 130 cases in the 1989 Term, precedent was overruled in only four.
* Limiting opinions to the discussion of questions presented and their particular facts.
* Ensuring that parties have standing.
* Being cautious about creating new rights or causes of action.
* Deference to specialized governmental entities in their areas of expertise.
* Intelligent use of certiorari to avoid “precipitous rulings in new areas of the law.” It is unclear what Powell means by this since rules of law must be established and clarified in every field, no matter how new. The sentence is consonant with his expressed reluctance to extend the power of the Court. Perhaps what he is saying is that the Supreme Court should give the legislature and the lower courts time to establish initial rules
Judge Posner’s five categories of judicial restraint.
Each of the actions identified by Justice Powell as constituting an aspect of judicial restraint falls into one of five categories of judicial restraint enumerated by Richard Posner, former Chief Judge of the Seventh Circuit Court of Appeals, in his article, “The Meaning of Judicial Self-Restraint.”: “The term “judicial self-restraint” could be used in at least five different senses: (1) A self-restrained, the judge does not allow his own views of policy to influence his decisions. (2) He is cautious, circumspect, and hesitant about intruding on those views. (3) He is mindful of the practical political constraints on the exercise of judicial power. (4) His decisions are influenced by a concern lest promiscuous judicial creation of rights result in so swamping the courts in litigation that they cannot function effectively. (5) He wants to reduce the power of his court system relative to that of other branches of government.”
The fifth aspect of judicial restraint—separation of powers— is Posner’s focus. But the list of ways to conceptualize judicial restraint demonstrates the importance and complexity of the doctrine.
Criticisms of judicial restraint
A significant part of judicial restraint is deference given to other branches of government in their respective areas of competence. At times, this can lead to the perpetuation of unacceptable situations.
An example is Korematsu v. the United States. In that 1944 case, people of Japanese ancestry were excluded from a sixty-mile-deep military zone running along the entire West Coast of the United States, because of Army concerns that there might be espionage and sabotage. Those who were excluded were to report to internment centers. Congress made it a crime to disobey the military order.
Defendant remained within the exclusion zone and was convicted. On appeal, the majority affirmed, expressing deference to the Military and Congress. Chief Justice Roberts recently wrote that Korematsu was wrongly decided.
Similarly, Plessy v. Ferguson upheld a Louisiana statute requiring blacks and whites to ride in different train cars, ostensibly to reduce racial violence (of which there was no evidence.) The Court deferred to the Legislature, holding that separate but equal accommodations were Constitutional. By doing so, it legally sanctioned racial segregation for nearly six decades. Obviously, these are extreme examples. But the deference that comes with judicial restraint is often determinative of case outcomes.
Some writers have called for an end to judicial self-restraint, arguing that it renders judges too passive in defending important rights. This is ultimately a political question. But given the many functions of judicial restraint, we would live in a very different society without it.