Judicial restraint

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Judicial restraint is a judicial interpretation that recommends favoring the status quo in judicial activities; it is the opposite of judicial activism. Aspects of judicial restraint include the principle of stare decisis (that new decisions should be consistent with previous decisions); a conservative approach to standing and a reluctance to grant certiorari;[1] and a tendency to deliver narrowly tailored verdicts, avoiding "unnecessary resolution of broad questions."[1]

Judicial restraint may lead a court to avoid hearing a case in the first place. The court may justify its decision by questioning whether the plaintiff has standing; or by refusing to grant certiorari; or by determining that the central issue of the case is a political question better decided by the executive or legislative branches of government; or by determining that the court has no jurisdiction in the matter.

Judicial restraint may lead a court to decide in favor of the status quo. In a case of judicial review, this may mean refusing to overturn an existing law unless the law is flagrantly unconstitutional (though what counts as "flagrantly unconstitutional" is itself a matter of some debate).[2] On an appeal, restraint may mean refusing to overturn the lower court's ruling. In general, restraint may mean respecting the principle of stare decisis — that new decisions should show "respect [...] for its own previous decisions."[1]: 287 

Judicial restraint may lead a court to rule narrowly, avoiding "unnecessary resolution of broad questions" (also known as judicial minimalism.)[1] Restrained rulings are small and case-specific, rather than broad and sweeping. Restrained rulings also hesitate to justify themselves in terms of previously unidentified rights or principles.


U.S. Supreme Court Justice Lewis F. Powell Jr. wrote:

A constitutional case involving stare decisis was South Carolina v. Gathers. In Gathers the Court was urged to reconsider Booth v. Maryland.... [In an example of judicial restraint,] Justice White, who had dissented in the Booth case, declined to overrule it. He joined Justice Brennan's opinion for the Court in Gathers. The four dissenters in Gathers [displaying the opposite of judicial restraint] explicitly called for overruling Booth. Justice Scalia ... argued that a Justice must be free to vote to overrule decisions that he or she feels are not supported by the Constitution itself, as opposed to prior precedents.[3]

Roe v. Wade (1973) is frequently cited as an example of judicial activism, but subsequent cases, such as Whole Woman's Health v. Hellerstedt (2016), have demonstrated judicial restraint by ruling in harmony with the precedent set by Roe or by delivering narrow rulings on specific questions that do not explicitly seek to overturn Roe in its entirety.

Vacco v. Quill is an example of judicial restraint,[4] in part for upholding a New York state law criminalizing physician-assisted suicide if the patient is terminally ill-- for example, they have advanced stage 4 leukemia and the suffering child or the elderly woman does not want to endure this any longer. ) and in part for refusing to set any new precedent such as a constitutionally protected "[right to die if terminally ill]]."

Former Associate Justice Oliver Wendell Holmes Jr., considered to be one of the first major advocates of the philosophy of judicial restraint, described its importance in many of his books.[5] One writer described Associate Justice Felix Frankfurter, a Democrat appointed by Franklin Roosevelt, as the "model of judicial restraint".[6]

William Rehnquist (Chief Justice 1986–2005) has been acknowledged as an advocate of judicial restraint,[7] despite his Court's having overturned some precedents from the more liberal Warren Court.[8] (In 1989, Lewis F. Powell Jr. analyzed decisions overruled by two previous Courts; Powell found that the "activist" Warren Court had explicitly overruled prior decisions 63 times in 16 years, whereas the Burger Court had overruled 61 decisions in 17 years — a "fairly constant" rate.)[1]: 285 

See also[edit]


  1. ^ a b c d e Lewis F. Powell Jr. (Spring 1990) [1989-10-17]. "Stare Decisis and Judicial Restraint". Washington and Lee Law Review. 47 (2): 281–290.
  2. ^ Zachary Baron Shemtob (March 27, 2012). "Following Thayer: The Conflicting Models of Judicial Restraint". papers.ssrn.com.
  3. ^ Powell, Lewis F., Jr., "Stare Decisis and Judicial Restraint," Washington and Lee Law Review, vol. 47, no. 2 (Spring 1990), p. 283 (footnotes omitted).
  4. ^ Jeffrey Rosen (June 29, 1997). "Nine Votes for Judicial Restraint". The New York Times.
  5. ^ Brian Z. Tamanaha (April 7, 2007). "Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint (Review)". Notre Dame Philosophical Reviews. Retrieved December 2, 2021.
  6. ^ Kim Isaac Eisler (1993). A Justice for All. p. 11. ISBN 0-671-76787-9.
  7. ^ Bill Mears (September 4, 2005). "Conservatism, judicial restraint mark Rehnquist legacy". CNN. Archived from the original on January 20, 2012.
  8. ^ "Reagan's Mr. Right". Time. June 30, 1986. Archived from the original on December 8, 2008.