Judicial restraint

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] It 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. Judicial restraint requires the judge to uphold a law whenever possible. 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.^[2] Former Associate Justice Felix Frankfurter, a Democrat appointed by Franklin Roosevelt, is generally seen as the "model of judicial restraint".^[3]

Judicially-restrained judges respect stare decisis, the principle of upholding established precedent handed down by past judges.^[4] When the late Chief Justice Rehnquist overturned some of the precedents of the Warren Court, Time magazine said he was not following the theory of judicial restraint.^[4] However, Rehnquist was also acknowledged as a more conservative advocate of the philosophy.^[5]

Related theories

Minimalism

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 in order to maintain that stability. They ask judges to do this by creating small, case-specific rulings rather than broad, sweeping rulings.

Political question doctrine

The political question doctrine encourages courts to decline to rule in certain categories of 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.

Judicial restraint and individual U.S. Supreme Court cases

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• Luther v. Borden, 1849 - sometimes called the first instance of judicial restraint
• "Lyng v. Northwest Indian Cemetery Protective Association", 1988 - declared "A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them."
• Bush v. Gore, 2000 - Florida Supreme Court's method for recounting ballots was ruled as having violated the Equal Protection Clause of the Fourteenth Amendment in a presidential election
• District of Columbia v. Heller, 2008 - Declared the Washington, D.C. ban on private ownership of hand guns unconstitutional in violation of the 2nd Amendment

See also

• Judicial activism
• Separation of powers

References

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