Judicial Restraint vs Judicial Activism

Cite this article as: Jason Mance Gordon, "Judicial Restraint vs Judicial Activism," in The Business Professor, updated January 2, 2015, last accessed April 9, 2020, https://thebusinessprofessor.com/knowledge-base/judicial-restraint-vs-activism/.
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Judicial Restraint and Judicial Activism
What is Judicial Restraint? What is Judicial Activism?

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What are the theoretical (political) views toward judicial review?

As previously discussed, appellate courts have the power of judicial review. This includes the power to review laws passed by the legislative body or actions by the executive and to declare them to be unconstitutional and void. Two primary views exist regarding the role of the judiciary in executing its authority:

  • Judicial Restraint – Proponents of judicial restraint believe that the judiciary’s power of review should not be used except in unusual cases. They specifically believe that review of laws that has the effect of expanding or limiting the understanding of constitutional rights are too important to be decided by courts unless absolutely necessary. As such, any case that requires analysis and interpretation as to the extent of rights afforded under the Constitution are to be avoided if there is another legal basis for a decision. Proponents of judicial restraint also believe that litigation is not the appropriate technique for bringing about social, political, and economic change. That is, social, political, and economic change should only result from the passage of laws by the legislative branch of the federal or state government.
  • Judicial Activism – Proponents of judicial activism support the use of the judiciary’s power of review. They believe that judicial interpretation of laws is the appropriate vehicle for developing legal standards and should be used whenever justified by the needs of society or public sentiment. Proponents of judicial activism also believe that constitutional issues must be decided within the context of contemporary society. They adopt the view that the meaning of the Constitution is relative to the collective beliefs, sentiments, and values of society at the time in which the law is being interpreted.

These views of the role of appellate courts have become largely a political issue.

Discussion: What are the major arguments in favor of or against judicial restraint? Judicial Activism? How do these points of view align with the beliefs of major political parties within the United States?

Discussion Input

  • The argument for judicial restraint is that the judiciary should not use this power unless it is necessary. They argue that the power of expanding or limiting understanding of the constitutional rights are too important to be decided by courts unless absolutely necessary. This is a primary view of the Republican party, which largely oppose the expansion of individual liberties or protections through court interpretation. The proponents of Judicial Activism believe that the judicial interpretation of laws is the appropriate vehicle for developing legal standards and should be used whenever justified by the needs of society or public sentiment. This is aligned with the view of the Democratic Party, which believes that Congress is too slow and too divided to adequately legislate for the protection of individual rights.

Practice Question: ABC Corporation spends a great deal of money each year lobbying politicians. It contributes tens of millions of dollars of shareholder money to political action committees that support particular political candidates that support policies favorable to ABC. ABC tasks you with researching political candidates to identify which candidates actively endorse the view of judicial restraint? Why do you think this information is relevant and valuable to ABC?

Proposed Answer

  • Companies generally favor certainty in the law. As previously discussed, the law is slow to change through passage of new or amendment of existing statutes. The law is subject to change more rapidly (and potentially with greater impact) through judicial interpretation. While ABC can spend money to influence politicians; it is illegal to do so with judicial officials. As such, ABC may be more included to support politicians who favor judicial restraint.

Academic Research

Levy, Richard E. and Glicksman, Robert L., Judicial Activism and Restraint in the Supreme Court’s Environmental Law Decisions (June 1, 1989). Vanderbilt Law Review, Vol. 4, No. 343, 1989. Available at SSRN: https://ssrn.com/abstract=1955668

Zietlow, Rebecca E., The Judicial Restraint of the Warren Court (and Why it Matters) (January 23, 2007). Ohio State Law Journal, Vol. 69, No. 2, 2008. Available at SSRN: https://ssrn.com/abstract=960144 or http://dx.doi.org/10.2139/ssrn.960144

Bonventre, Vincent Martin, Judicial Activism, Judges’ Speech, and Merit Selection: Conventional Wisdom and Nonsense. Albany Law Review, Vol. 68, No. 3, 2005. Available at SSRN: https://ssrn.com/abstract=1142071

Sherry, Suzanna, Why We Need More Judicial Activism (February 6, 2013). Constitutionalism, Executive Power, and Popular Enlightenment, 2014 Forthcoming; Vanderbilt Public Law Research Paper No. 13-3. Available at SSRN: https://ssrn.com/abstract=2213372

Grimes, Warren S., Judicial Activism in the First Decade of the Roberts Court: Six Activism Measures Applied (Jan. 5, 2919). 48 Southwestern L. Rev. 37 (2019). Available at SSRN: https://ssrn.com/abstract=3012339 or http://dx.doi.org/10.2139/ssrn.3012339

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