For most of American history, the doctrine of judicial restraint inhered in the operation of the U.S. Supreme Court and was deemed by justices to be the proper and legitimate paradigm for long-term stable, republican government under the Constitution.  The idea is that rule of law should help shape society, not the rule of judges per se; and the rule of law means it is the American people who must make the law, abide by it, and change the law when/if they want to.  Of course, there were always the contrary impulses both to gain power and to “do good,” but (with notable exceptions) these did not gain ascendancy in terms of judicial activism until the Warren Court in the 1960s.  The appointments of Chief Justice Roberts and Justice Alito have arguably initiated a movement toward tighter reasoning and restraint in Court decisions, but there are also decades of bad precedent to overcome and special interests that enjoy power and prestige afforded by it. 

Judicial restraint in part is characterized by judicial review of the Supreme Court, i.e., to decide on the constitutionality of the Acts of Congress and state laws or enactments.  The right of judicial review by the Supreme Court is not explicit in the Constitution, given that the three branches of government are co-equals and states are co-equal sovereignties with the federal government.  Nevertheless the precedent did take shape in the early years of the Republic with assent and tutelage of the Founding Fathers themselves.  Moreover, it was consistent with British Whig tradition.  It can be argued that only through an application of restraint, by which the Court decides judiciously what it will hear and in rare cases only, ventures to overturn the acts of Congress or states—will respect for that institution long endure in a democratic body politic.  The Court so restrained, refrains from deciding what is best, only what is legal in some circumstances.  The Court’s energetic nullification of laws would surely diminish politicians’ and the people’s sense of independent responsibility to enforce constitutional guarantees or to enact wise policy.  According to Edith Jones, Chief Judge of the United States Court of Appeals for the Fifth Circuit, “It is the people and their representatives, …who bear [ultimate] responsibility for maintaining the constitutional structure of our government” and not the courts. 

Four precepts characterize judicial restraint in the American tradition and serve as soft though proper bounds for how it should be exercised.  First, avoiding counter-majority decisions, which unnecessarily place the Court at odds with the people and their elected representatives.  Legislation should receive full benefit of the presumption of constitutionality.  Moreover, avoiding decisions on ultimate constitutional issues is often better, if it preserves the responsibility and authority of the legislative process.  Second, judges should appreciate the limits of judicial power—i.e., to understand that such power is not competent to right all wrongs or solve social problems.  Judicial power is not a remedy for political mischief, in other words, and the Founders did not enthrone the Judiciary.  Third, a restrained judge knows his own prejudices and fallibility and approaches his task of adjudication with humility.  This means the judge seeks to tame his own subjectivity, to apply self-control in the exercise of his judgment.  Finally, attention must be given to the judicial craft itself, to careful writing and fidelity to the record, to excellence in logic and reasoning.  It is of course a professional and ethical duty for judges to do so, but it also involves skills to hone and to practice, and represents a high aim to attain. 

The most grievous violation of judicial restraint in American history, as well as the grossest violation of every American legal precedent and professional standard of conduct whatsoever, is the recourse to foreign and international legal sources to interpret the U.S. Constitution!  This has only been done in the last few years, a 21^st century innovation; and there are now five members of the Supreme Court who subscribe to this device, who indeed should all be impeached.  By citing foreign sources, the Court opens itself up directly to foreign influence through amicus briefs from international groups who presume to tell the American people how their government should be run.  Another practical problem is the citing of some sources but not other contrary ones, given that the histories and traditions are entirely separate from our own, and can be from each other.  Justice Scalia rightly observes the practice of citing foreign sources by U.S. Justices has been result-oriented, essentially citing what the activist judge has decided to say.  Small comfort, since even legal rigor outside the bounds of the U.S. Constitution and the sovereign, independent and federal legal tradition of these United States, has no place. 

Wes Riddle is a retired military officer with degrees and honors from West Point and Oxford.  Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary.  Article loosely based on address by Judge Edith Jones for Constitution Day in 2007. 

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