Judicial Self-Restraint

Judicial Self-Restraint in the United States

A philosophy and style of judicial decision making that minimizes the extent to which judges apply their personal views to the legal judgments they render. Judicial self-restraint is particularly useful in analyzing the behavior of appellate courts like the U.S. Supreme Court. The term describes a self-imposed limitation seen by the judges who practice it as the decision making approach most compatible with democratic principles. The judges who subscribe to self-restraint will go to great lengths in deferring to the policy decisions of the elective branches. In other words, self-restraintist judges seek to limit their role to the enforcement of norms established by those accountable to the electorate. Marginal constitutional problems are typically insufficient to prompt judicial intervention. Only where constitutional violations are flagrant should courts nullify actions of the political branches. The opposite view from self-restraint is judicial activism. The judicial activist is comfortable with an expanded policy role for courts. Activist judges are less inclined to defer to the other branches. Unlike the restraintist, the activist will not so readily presume legislation to be constitutional and will restrict legislative initiatives more frequently. It is for this reason that activists are charged with judicial “legislating.” See also Judicial Activism (Judicial Effects and Policies) Judicial Review (Judicial Effects and Policies);

Norm Enforcement (Judicial Effects and Policies).

Analysis and Relevance

Judicial self-restraint holds that courts should defer to the policy judgments made by those in the elected branches of government. Judges who adhere to the philosophy of self-restraint also impose a more restrictive definition of justiciability and adhere more strictly to judicial precedent. Self-restraint does not necessarily coincide with a conservative policy orientation. Exercise of self-restraint by deferring to legislative establishment of a minimum wage or to an aggressive Equal Employment Opportunity Commission program, for example, might yield a liberal policy result. Judicial self-restraint is a perception of the judicial role as one that limits the exercise of judicial power and views the legislative and executive branches as the appropriate sources of major policy initiatives. Self-restraintists view a more aggressive or active role as inappropriate for several reasons. First, courts are generally not accountable to the public. This is especially true of federal judges who are appointed and enjoy life tenure. Second, courts seldom win confrontations with the other branches. Indeed, the courts tend to be vulnerable to reprisals aimed at limiting their power. Thus judicial independence may be threatened by activist and provocative decisions. Finally, self-restraintists argue that courts are not a well suited forum for decision making on broad and complex social questions. Among the leading advocates of judicial self-restraint in the history of the Supreme Court are Justice Felix Frankfurter and the second Justice John Marshall Harlan.

Notes and References

  1. Definition of Judicial Self-Restraint from the American Law Dictionary, 1991, California

Judicial Self-Restraint: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Judicial Self-Restraint. This part provides references, in relation to Judicial Self-Restraint, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Judicial Self-Restraint by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Judicial Self-Restraint and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Judicial Self-Restraint or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Judicial Self-Restraint and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Judicial Self-Restraint. Finding these decisions can be challenging. In many cases, researchers about Judicial Self-Restraint should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Judicial Self-Restraint when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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