Intro to Judicial Philosophy - Restraint
Fundamentals of Judicial Philosophy - Restraint
Judicial restraint is a philosophy found at one end of a spectrum of judicial philosophies. Judicial activism lies at the other end of the spectrum. We will first look at judicial restraint. A jurist (judge or justice) who adheres to a philosophy of restraint can be characterized as one who believes that democracy has intrinsic, not just instrumental, value; that the judiciary is the least powerful of the three branches of government; and reveres the values of stability and predictability in lawmaking.
The first two of these points are closely related. To view democracy as an intrinsic value is to accept the necessity of preserving the separation of powers of the three branches and to acknowledge the role each must play in government. A restrained judge would limit him or herself to reviewing matters of law--not to allow a court to act as a "superlegislature," by imposing "judge-made" law in place of democratically elected officials. Adherents of judicial restraint argue that restraint's counterpart--judicial activism--is illegitimate because it does inject itself into areas of making law. In that context, activism is considered a threat to the values of stability and predictability, whereas restraint is the only judicial philosophy that preserves those values--values which are paramount to the proper maintenance of a majoritarian system such as our own.
In the area of constitutional law, a judicially restrained judge will first look to the language of the Constitution for guidance. Should the language be unclear, the judge would try to divine the intent of the framers of the constitution in order to decide how best to apply that intent. Finally, if the intent of the framers in a given area of constitutional law remains unclear, the restrained judge will defer to what he or she thinks the framers meant and try to expand the least on what is considered framers' intent. By doing so, the judicially restrained judge takes great care to defer to constitutional language or, failing that, to the intent of the framers of the Constitution. This form of judicial review invites the least amount of "invention" in constitutional law, something a restrained jurist always tries to avoid.
The same degree of deference is present in cases where statutory law is being reviewed. The restrained judge will stick to the statutory language in question. Should the wording of the law remain unclear, the judge will defer to the Congressional intent behind the statute by examining the legislative history of the law. And, as above, should congressional intent be unclear, the restrained judge will try to determine the intent of Congress with the greatest amount of deference to that body as possible. Each of these steps in this process is characterized by an assumption that Congress has the more authoritative voice and that judicial intervention over the voice of democratically elected officials is unwarranted.
A corollary to this deference to Congress is a deference to administrative agencies, since they are empowered by Congress. In cases dealing with administrative law, a restrained judge will defer to the enabling legislation of a given agency. When that language may be unclear, the judge will defer to the administrative expertise of agency principals, on the presumption that Congress would not have empowered them were they not experts. In the area of administrative law, a restrained judge also adheres to the Administrative Procedures Act and, in reviewing agency action, will insist that the agency must also adhere to the Act. This is, in effect, another form of deference to statutory language.
Finally, in the area of common law, a restrained judge will adhere to precedent in order to insure stability and predictability, and is not likely to expand in the area of common or, "judge-made," law since such expansion runs counter to his or her philosophy. The common thread through each of these categories is the restrained judge refusing to be a maker of law, simply a reviewer of law. The underlying belief that the judiciary is the least powerful branch of the government manifests itself in the broad range of deference to legislative, executive, and administrative bodies.
I mentioned at the beginning of this section that judicial restraint lies on a spectrum of judicial philosophies, it is not a discreet category of judicial behavior. Other terms such as "strict constructionist," "interpretivist," and "textualist" have all been used to described an individual exercising judicial restraint. These terms are indicative of the subtle shadings of judicial philosophies which lie on the larger spectrum. The most judicially conservative would appear to be the textualist--a judge who limits him or herself to the text of the Constitution and what those words meant at the time the document was drawn up. The textualist, like any restrained jurist, rejects the notion of a "living" Constitution, i.e., a purposefully vague governmental charter which was intended to grow along with its constituents. What it says is what it says, and that can be the only basis for deciding issues of constitutional law. The same restrictions apply for statutory law and stare decisis in the realm of common law.
Another restrained, but less restrictive, permutation is that of interpretivism. This at least allows for reflection on framers' intent and the possibility of interpreting new situations in constitutional law using original intent as a guide in applying neutral legal principles. These different terms for judicial restraint do carry differing meanings for me and can be considered "sub-philosophies" of restraint. But however it is referred to, judicial restraint can always be characterized as a judicial philosophy which reviews law, rather than "make" it; defers to the democratically elected representatives of government; and holds in highest regard the intent of the framers of the Constitution, as well as the language of that document.
Advocates of judicial restraint often argue that judicial activism is a repudiation of the admittedly important values of stability and predictability in law. They assert that with an activist judge, one never knows what one's rights will be from case to case because the activist judge is not bound by the philosophical restrictions in place for the restrained judge.
Take me to the section on judicial activism.
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