The view that unelected federal judges should generally be reluctant to interfere with the decisions of the democratically elected branches of government.
Advocates of judicial self-restraint argue that the Supreme Court should generally refrain from interfering with the exercise of authority by Congress, the president, and the state governments.
Following the New Deal
Under Chief Justice William H. Rehnquist, the Supreme Court became more conservative. Clockwise from upper left, members of the Rehnquist Court included Ruth Bader Ginsburg, David Souter, Clarence Thomas, Stephen Breyer, Anthony Kennedy, Sandra Day O'Connor, Rehnquist, John Paul Stevens, and Antonin Scalia
As these constitutional struggles came to a head during the New Deal, justices such as Harlan Fiske Stone sought to build on Holmes’s restrained vision of the judicial role. Dissenting in United States v. Butler
Following this New Deal switch in time, Justice Stone led the Court in articulating a new set of modern constitutional foundations in support of the continued exercise of judicial power. In United States v. Carolene Products Co.
In response, Justice Felix Frankfurter
Beginning with Brown v. Board of Education (1954), the Warren
In dissenting opinions in this and related cases, Frankfurter and Justice John M. Harlan II argued that the Court was violating the principle of self- restraint by inserting itself into the legislative districting process, which had always been considered a “political question.” Frankfurter denounced the Court for entering this “political thicket
Many of the Warren Court’s decisions protecting civil rights and civil liberties were politically controversial, and in 1968, Republican Richard M. Nixon made the Court’s liberal activism a key theme in his campaign for the presidency. Nixon promised that if elected, he would appoint justices who would exercise a much greater degree of self-restraint. During his first term in office, he appointed Warren E. Burger,
Although constitutional conservatives
Like Nixon, Presidents Ronald Reagan and George Bush were also sharp critics of liberal judicial activism, and they made an explicit effort to appoint justices who would exercise judicial self-restraint. Despite ten consecutive Republican appointments by the end of the Bush administration, however, the Court continued to exercise judicial activism in defense of individual liberties and minority rights in cases such as Planned Parenthood of Southeastern Pennsylvania v. Casey
In a number of contexts, however, constitutional conservatives themselves abandoned the principle of judicial self-restraint. Beginning in the mid-1970’s, a series of New Right political movements denounced the modern liberal political order, including its twin foundations in national government policy, the New Deal and the Great Society. These political conservatives denounced the welfare state in particular and government taxing and regulatory authority more generally. They also denounced what they perceived as the policies of a “liberal cultural elite” and were particularly critical of egalitarian policies such as affirmative action and gay and lesbian rights.
During the 1990’s, these New Right political ideas worked their way into constitutional discourse, at times posing a conflict with the longstanding conservative principle of self-restraint. In the area of affirmative action, for example, the conservative justices of the Rehnquist Court struck down a number of state and federal affirmative action policies in an effort to enforce their “color-blind” vision of the Fourteenth Amendment. They even carried this principle so far as to enter the “political thicket” of legislative districting by holding that the states may not draw legislative districts on the basis of race, not even to improve the representation of relatively powerless racial minorities. In these cases, relatively liberal justices such as John Paul Stevens and David H. Souter denounced the Court for interfering with the majority will.
Thus, the constitutional decisions of the Rehnquist Court reflected a complex mix of liberal activism and conservative self-restraint in some contexts and conservative activism and liberal self-restraint in others.
Two broad works on the Supreme Court that pay special attention to the issue of judicial restraint are Jeffrey Rosen’s The Most Democratic Branch: How the Courts Serve America (New York: Oxford University Press, 2006) and Thomas M. Keck’s The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (Chicago: University of Chicago Press, 2004). Although there are countless books and articles on the topic of judicial self-restraint, readers would do well to start with chapter 10 in Judge Richard Posner’s The Federal Courts: Challenge and Reform (Cambridge, Mass.: Harvard University Press, 1996). Other helpful readings on the topic include Justice John Paul Stevens’s “Judicial Restraint” in San Diego Law Review 22 (May-June, 1985): 437-452, and the essays collected in Stephen C. Halpern and Charles M. Lamb, eds., Supreme Court Activism and Restraint (Lexington, Mass.: Lexington Books, 1982). For examples of conservative arguments for judicial self-restraint, see Robert H. Bork’s The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990) and the essays collected in Mitchell S. Muncy’s The End of Democracy? The Judicial Usurpation of Politics (Dallas: Spence, 1997). For one of the most influential liberal critiques of such arguments, see Ronald Dworkin’s Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, Mass.: Harvard University Press, 1996). For an argument by a liberal constitutional scholar in favor of an innovative conception of self-restraint, see Cass R. Sunstein’s One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, Mass.: Harvard University Press, 1999).
Bork, Robert H.
Butler, United States v.
Carolene Products Co., United States v.
Holmes, Oliver Wendell
Lochner v. New York
Nixon, Richard M.
Reynolds v. Sims
Roe v. Wade