Skip to main content

Bench Semantics

by jennifer c. braceras

Illustration by David Lesh

These days both political liberals and political conservatives claim that they want judges who will act with “restraint,” not judicial “activists” who will
legislate from the bench. Polling data demonstrate that the American people agree with this sentiment. But what do the terms “judicial activist”
and “judicial restraint” actually mean?

The term “judicial restraint” refers to the idea that the role of a judge is not to make policy or establish new legal rights, but to apply the law as written in the Constitution and in democratically enacted statutes. “Judicial activism,” by contrast, refers to results-oriented judging, whereby a judge decides the outcome of a case on the basis of his or her view of what is just and fair without sufficient regard for the law as written.

In the late 1970s, conservatives championed “judicial restraint” in the hopes of curtailing outcome-oriented judging with liberal results. Liberals, on the other hand, rejected the notion that courts should act only as neutral umpires. Adopting the arguments of the Legal Realists, the Left argued that judges cannot separate bias from judgment and urged courts to view the Constitution as a “living document”—that is, a flexible set of rules capable of addressing contemporary problems. Judges, they argued, should consider whether the outcomes of their decisions will be just, not simply whether the process is fair.

One rarely hears such arguments anymore. Faced with the reality that most Americans do not want activist judges, the Left has abandoned the
rhetoric of the Constitution as a “living, breathing” document and has now embraced—some would say co-opted—the rhetoric of “restraint.”

Writing recently in the New York Times, Yale Law Professor Paul Gewirtz argued that “judicial activist” should be defined as a judge with a “marked pattern” of voting to strike down democratically enacted acts of Congress. Under this view, a restrained judge is one who shows total and complete deference to the legislative branch. After tallying the statistics for the current members of the Supreme Court, Gewirtz labeled Justices Clarence Thomas, Anthony Kennedy, and Antonin Scalia as “judicial activists” because they have voted most frequently to invalidate federal legislation.

This new definition of “judicial activism” proves both too little and too much. It is under-inclusive in the sense that it looks only at judicial invalidation of Congressional action. But government acts in many ways. Indeed, courts are routinely required to review the constitutionality of state legislative enactments as well as state and federal executive branch policies and actions. (If one were to broaden Gewirtz’s definition of activism to include judicial nullification of all forms of government power, it is doubtful whether his description of Justices Thomas, Kennedy, and Scalia would withstand scrutiny). These days both political liberals and political conservatives claim that they want judges who will act with “restraint,” not judicial “activists” who will legislate from the bench. Polling data demonstrate that the American people agree with this sentiment. But what do the terms “judicial activist” and “judicial restraint” actually mean?

More importantly, however, the Gewirtz definition of “activism” is too broad and confuses the pernicious notion of judicial activism with the largely uncontroversial idea of judicial review. As any first-year law student knows, judicial review is the power of the federal judiciary to strike down laws that conflict with the United States Constitution. To be sure, “judicial activism” occurs when courts invalidate otherwise constitutional statutes with which they disagree. But a court that nullifies prohibited or unauthorized government action is performing its proper constitutional function. This is a distinction that matters. No one doubts that courts must show deference to legislative policy choices. But when government exceeds its constitutional authority or tramples on rights protected by the Constitution, courts are correct to invalidate such action.

“Judicial activism,” then, refers not to the frequency with which courts nullify government action, but to a propensity for outcome-oriented judging. It occurs when a judge creates new constitutional rights. In the statutory context, it occurs when a judge upholds unconstitutional government action because he agrees with the policy goals it seeks to achieve and when a judge nullifies government action because he disagrees with the underlying policy goals.

It is, of course, difficult for the public to know a judge’s true motives. But this is why we expect judges to author written opinions explaining their decisions—so that we can consider the soundness of their reasoning and attempt to discern whether their decisions are grounded in law or politics. “Judicial activism” is not, as Gewirtz suggests, quantifiable. Only a careful reading of a judge’s opinions can reveal whether he or she is an activist or a practitioner of restraint.

The true hallmark of “judicial restraint” is an understanding that the role of the judiciary is to enforce the constitutional boundaries placed on government, both state and federal, not to advance or to undermine any particular policy goal. This is the characteristic that we should seek in all future appointments to the federal bench.

Jennifer Barceras, a visiting fellow at the Independent Women’s Forum in Washington, DC, and a commissioner at the US Commission on Civil Rights, will be a visiting professor at BC Law in the fall of 2006.