Judicial restraint

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Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional,[1] though what counts as obviously unconstitutional is itself a matter of some debate.[2] Judicial restraint is sometimes regarded as the opposite of judicial activism. In deciding questions of constitutional law, judicially restrained jurists go to great lengths to defer to the legislature. Judicially restrained judges respect stare decisis, the principle of upholding established precedent handed down by past judges.[3][dubious ][better source needed]

This doctrine states how domestic courts will abstain from passing judgement over the acts of a foreign sovereign done in its own territory.

Liberal restraint was shown in Whole Woman's Health v Hellerstedt in which the 1973 decision of Roe v Wade was upheld in favour of a woman's right to abortion. Cases on abortion have been heard since then, and while some have placed limitations on it, or allowed individual states to decide on those limitations, the unwillingness of the Court to overturn this decision remains.

Conservative restraint was shown in Glossip v Gross in which support was built in favour of the continued use of lethal injection. The case suggested that prisoners could only challenge the method of execution by providing an alternative method of execution. The Court argued that it was the responsibility of the prisoner to demonstrate that the execution method caused severe pain, not the responsibility of the state.

Leading voices in judicial restraint[edit]

Former Associate Justice Oliver Wendell Holmes Jr., considered to be one of the first major advocates of the philosophy, would describe the importance of judicial restraint in many of his books.[4] One noted academic described Associate Justice Felix Frankfurter, a Democrat appointed by Franklin Roosevelt, as the "model of judicial restraint".[5]

When the conservative Rehnquist Court overturned some of the precedents of the more liberal Warren Court, Time magazine said he was not following the theory of judicial restraint.[3] However, Rehnquist was also acknowledged as a more conservative advocate of the philosophy.[6]

Minimalism doctrine[edit]

Judicial minimalists argue that judges should put great emphasis on adherence to stare decisis and precedent. Minimalists argue that judges should make only minor, incremental changes to constitutional law to maintain that stability. They ask judges to do this by creating small, case-specific rulings rather than broad, sweeping rulings.

Political question doctrine[edit]

The political question doctrine encourages courts to decline to rule in certain categories of politically controversial cases. Under this theory, a court acknowledges that the Constitution might have been violated but declines to act. It is often described as a type of judicial restraint, although it can be considered a form of judicial activism against plaintiffs whose rights have been violated and find their cases dismissed.

See also[edit]


  1. ^ "Archived copy". Archived from the original on August 22, 2007. Retrieved January 25, 2007.CS1 maint: archived copy as title (link)
  2. ^ https://ssrn.com/abstract=2029687
  3. ^ a b http://www.time.com/time/magazine/article/0,9171,961645-6,00.html[dead link]
  4. ^ http://ndpr.nd.edu/news/25262-oliver-wendell-holmes-jr-legal-theory-and-judicial-restraint/
  5. ^ A Justice for All, by Kim Isaac Eisler, page 11; ISBN 0-671-76787-9
  6. ^ http://articles.cnn.com/2005-09-03/justice/rehnquist.legacy_1_william-hubbs-rehnquist-judicial-legacy-supreme-court?_s=PM:LAW Archived 2012-01-20 at the Wayback Machine