Significance: The struggle between advocates of judicial activism and judicial self-restraint poses the question of when, if ever, the Supreme Court should strike down a democratically enacted statute. This question reveals the potential tension between judicial power and democratic government.
Advocates of judicial self-restraint argue that the Supreme Court should generally refrain from interfering with the exercise of authority by Congress, the president, and the state governments. This doctrine is rooted in concerns regarding legitimacy and capacity. Federal courts are neither authorized to, nor institutionally capable of, resolving complex questions of social policy. Therefore, they should defer to statutes adopted by democratically enacted legislatures and refrain from usurping executive functions, particularly the administration of governmental institutions such as public schools, prisons, and medical facilities. During the Earl Warren, Warren E. Burger, and William H. Rehnquist eras, this doctrine was associated primarily with constitutional conservatives, but this was not always the case.
Following the New Deal constitutional revolution of 1937, a number of liberal justices and constitutional scholars concluded that the Court had been illegitimately thwarting the democratic will and that, in the future, it should exercise a much greater degree of restraint. Justice Oliver Wendell Holmes had argued consistently that the Court should defer to legislative judgments as long as they were not wholly irrational or unreasonable. For example, he dissented in cases such as Lochner v. New York (1905) and Adkins v. Children's Hospital (1923), insisting that the Court was wrongly striking down democratically enacted regulatory statutes on the basis of the justices’ own conservative laissez-faire economic philosophy. As these constitutional struggles came to a head during the New Deal, justices such as Harlan Fiske Stone sought to build on Holmes's restrained vision of the judicial role. Dissenting in United States v. Butler (1936), for example, Stone observed that “while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies not to the courts but to the ballot and to the processes of democratic government.” In response, the Court's conservatives, led by Justice George Sutherland, continued to defend their activist enforcement of constitutional limits on legislative power. In West Coast Hotel Co. v. Parrish (1937), however, the Court adopted the Holmesian approach in its famous “switch in time.” From this point on, the Court upheld a wide range of New Deal legislation, abandoned its active enforcement of the constitutional limits on government regulatory authority, and generally deferred to the judgments of the legislative and executive branches on such questions. Following this New Deal switch in time, Justice Stone led the Court in articulating a new set of modern constitutional foundations in support of the continued exercise of judicial power. In United States v. Carolene Products Co. (1938), Stone held that while the Court would generally defer to the political branches in the area of economic legislation, it would more closely scrutinize laws that infringed on a particular provision of the Bill of Rights, interfered with the fair operation of the democratic process, or discriminated against a relatively powerless minority group. Stone's footnote number 4 in Carolene (1938) thus laid the foundation for much of modern judicial activism, in which the Court has actively protected constitutional rights and liberties. In response, Justice Felix Frankfurter continued to build on the Holmesian concept of restraint, insisting that judicial activism was no more legitimate in the area of personal liberties than in the area of economic rights. In cases such as Minersville School District v. Gobitis (1940), West Virginia State Board of Education v. Barnette (1943), and Dennis v. United States (1951), Frankfurter insisted that the Court should almost always defer to the decisions of the elected branches, even when fundamental constitutional liberties were at stake. In Dennis, for example, the Court upheld the convictions of several members of the Communist Party under the Smith Act, a 1940 Cold War statute that outlawed the teaching of communist ideas. In his concurring opinion, Frankfurter urged his colleagues to remember that the Court's power of judicial review was not an “exercise of the powers of a super-legislature,” and he insisted in contrast to the Court's emerging fundamental rights doctrine that direct policy making was not the province of the court and that free speech cases were not “an exception to the principle that we are not legislators.”
The Warren Court
Beginning with Brown v. Board of Education (1954), the Warren Court exercised extensive judicial activism in an effort to protect individual liberties and minority rights against infringement by the majority. Although the Court's decision in Brown was unanimous, many of these decisions provoked extensive controversy, and the Court's dissenting justices often emphasized the principle of judicial self-restraint. In a series of cases in the 1960's, for example, the Court held that to ensure equal representation of all voters, the Constitution required that legislative districts be of approximately equal size. The Court viewed these decisions as necessary to rectify the tremendous imbalances in representation that existed in many states. The state of Alabama, for example, had not redrawn its legislative districts since 1900, and because so many people had moved from rural to urban areas, the population of the districts was now dramatically skewed. In the state house, the districts ranged from 6,700 to 104,000 people, and in the senate, from 15,000 to 634,000. In Reynolds v. Sims (1964), the Court held that these malapportioned districts violated the constitutional principle of “one person, one vote.” In dissenting opinions in this and related cases, Frankfurter and Justice John M. Harlan II argued that the Court was violating the principle of self- restraint by inserting itself into the legislative districting process, which had always been considered a “political question.” Frankfurter denounced the Court for entering this “political thicket” and Harlan emphasized that the Court's “elaboration of its new ’constitutional’ doctrine indicates how far and how unwisely it has strayed from the appropriate bounds of its authority.…It is difficult to imagine a more intolerable and inappropriate interference by the judiciary with the independent legislatures of the States.” Harlan concluded that “these decisions give support to a current mistaken view of the Constitution and the constitutional function of this Court. This view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional ’principle,’ and that this Court should ’take the lead’ in promoting reform when other branches of government fail to act.” In leading the Court's dissenters in these voting rights cases, Frankfurter and Harlan articulated the conservative conception of judicial restraint in its modern form, sharply stated as an attack on illegitimate judicial power and closely linked to an “originalist” conception of the Fourteenth Amendment.
The Burger Court
Many of the Warren Court's decisions protecting civil rights and civil liberties were politically controversial, and in 1968, Republican Richard M. Nixon made the Court's liberal activism a key theme in his campaign for the presidency. Nixon promised that if elected, he would appoint justices who would exercise a much greater degree of self-restraint. During his first term in office, he appointed Warren E. Burger, Harry A. Blackmun, Lewis F. Powell, Jr., and William H. Rehnquist, and in many areas of constitutional law, these justices lived up to Nixon's expectations. Justice Rehnquist was particularly faithful to this constitutional vision, and throughout the 1970's, he consistently dissented from the Court's decisions protecting constitutional rights and liberties. In 1973, for example, he dissented from the Court's landmark abortion decision, Roe v. Wade, insisting that the Court was wrongly striking down the abortion laws of more than half the states. Over the next twenty years, the Court's abortion decisions were one of the principal targets of conservative advocates of judicial self-restraint. Although constitutional conservatives never succeeded in overturning Roe, they did have some influence on the Court in other areas of the law. In Bowers v. Hardwick (1986), for example, the Court held by a 5-4 vote that Georgia's statute criminalizing consensual sodomy did not violate the Constitution. Although Michael Hardwick, a gay man, had been arrested in his own bedroom for engaging in oral sex, Justice Byron R. White held that this statute did not violate the constitutional “right to privacy” because the Court should generally be reluctant to invalidate democratically enacted statutes on the basis of a right that is not explicitly mentioned in the constitutional text.
The Rehnquist Court
Like Nixon, Presidents Ronald Reagan and George Bush were also sharp critics of liberal judicial activism, and they made an explicit effort to appoint justices who would exercise judicial self-restraint. Despite ten consecutive Republican appointments by the end of the Bush administration, however, the Court continued to exercise judicial activism in defense of individual liberties and minority rights in cases such as Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), Romer v. Evans (1996), and United States v. Virginia (1996). Justice Antonin Scalia was the Court's sharpest critic of these decisions, frequently denouncing his colleagues for engaging in “act[s], not of judicial judgment, but of political will.” In a number of contexts, however, constitutional conservatives themselves abandoned the principle of judicial self-restraint. Beginning in the mid-1970's, a series of New Right political movements denounced the modern liberal political order, including its twin foundations in national government policy, the New Deal and the Great Society. These political conservatives denounced the welfare state in particular and government taxing and regulatory authority more generally. They also denounced what they perceived as the policies of a “liberal cultural elite” and were particularly critical of egalitarian policies such as affirmative action and gay and lesbian rights. During the 1990's, these New Right political ideas worked their way into constitutional discourse, at times posing a conflict with the longstanding conservative principle of self-restraint. In the area of affirmative action, for example, the conservative justices of the Rehnquist Court struck down a number of state and federal affirmative action policies in an effort to enforce their “color-blind” vision of the Fourteenth Amendment. They even carried this principle so far as to enter the “political thicket” of legislative districting by holding that the states may not draw legislative districts on the basis of race, not even to improve the representation of relatively powerless racial minorities. In these cases, relatively liberal justices such as John Paul Stevens and David H. Souter denounced the Court for interfering with the majority will. Thus, the constitutional decisions of the Rehnquist Court reflected a complex mix of liberal activism and conservative self-restraint in some contexts and conservative activism and liberal self-restraint in others.
- Two broad works on the Supreme Court that pay special attention to the issue of judicial restraint are Jeffrey Rosen's The Most Democratic Branch: How the Courts Serve America (New York: Oxford University Press, 2006) and Thomas M. Keck's The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (Chicago: University of Chicago Press, 2004). Although there are countless books and articles on the topic of judicial self-restraint, readers would do well to start with chapter 10 in Judge Richard Posner's The Federal Courts: Challenge and Reform (Cambridge, Mass.: Harvard University Press, 1996). Other helpful readings on the topic include Justice John Paul Stevens's “Judicial Restraint” in San Diego Law Review 22 (May-June, 1985): 437-452, and the essays collected in Stephen C. Halpern and Charles M. Lamb, eds., Supreme Court Activism and Restraint (Lexington, Mass.: Lexington Books, 1982). For examples of conservative arguments for judicial self-restraint, see Robert H. Bork's The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990) and the essays collected in Mitchell S. Muncy's The End of Democracy? The Judicial Usurpation of Politics (Dallas: Spence, 1997). For one of the most influential liberal critiques of such arguments, see Ronald Dworkin's Freedom's Law: The Moral Reading of the American Constitution (Cambridge, Mass.: Harvard University Press, 1996). For an argument by a liberal constitutional scholar in favor of an innovative conception of self-restraint, see Cass R. Sunstein's One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, Mass.: Harvard University Press, 1999).