What Is the Meaning of Judicial Restraint?

The theory of judicial restraint holds that judges should follow precedent when deciding cases.

Judicial restraint is a legal theory that holds that judges should stick as close as possible to precedent when making decisions. Precedents include prior court cases that have similar facts to the case the judges are deciding. The theory also holds that judges should avoid questioning the policy decisions of the legislature and avoid embodying their own policy decisions in their rulings.

Origin

Perhaps the oldest and most well-known case discussing judicial precedent is Marbury v. Madison, decided in 1803. According to the 'Lectric Law Library, the issue in Marbury was that Marbury had been promised a commission to work in the federal government by President John Adams, but it had not been delivered by the time President Thomas Jefferson took office. Marbury sued Jefferson's Secretary of State, James Madison, when Madison would not give him his commission. The Supreme Court held that it could not intervene to give Marbury his commission because the Court could not extend its jurisdiction beyond what it had been given in the Constitution, regardless of the justices' own opinions of the case.

Mandate

The theory of judicial restraint reasons that judges should not inject their own policy preferences into their rulings because judges, unlike elected members of Congress or the elected president, are appointed. According to Auburn University's Glossary of Political Economy Terms, being appointed and not elected means that judges do not have a popular mandate to support their personal policy decisions. Judges who are elected, such as state supreme court judges, may have more leeway in implementing policy decisions.

Stability

Another value the theory of judicial restraint promotes is that of stability in lawmaking, according to Eastern Michigan University. The United States is a common-law country; our laws come both from our legislatures and from the rulings made by judges in previous cases. Judicial restraint guides judges to base their decisions in cases they hear on the decisions made in similar cases that have come before. Such guidance promotes stability in the law because litigants can feel more secure that their case will be decided as similar cases before theirs have been.

Constitutional Law

Judges employing judicial restraint when considering a constitutional law issue will first look to the language of the Constitution itself, according to Eastern Michigan University. If the language of the Constitution is unclear, such judges will then consider what the framers of the Constitution might have intended at the time it was written. The judge will try to follow the language and the framers' intent as closely as possible, and will often choose not to consider changes in the law or current policy issues when reaching a decision.

Statutory Law

When considering a law made by the legislature and passed as a statute, a judge will first consider the language of the statute itself. According to Eastern Michigan University, if the language of the statute does not make the issue clear, the judge may then turn to the intent of the legislature that passed it, by looking at the legislative history surrounding the passage of the statute, the debates in the legislature concerning the statute, and any policy positions the legislature may have written into the statute. The judge will tend to follow the legislature's stated policy rather than implementing his or her own in the ruling.

References

• Auburn University Glossary of Political Economy Terms: Judicial Restraint
• Eastern Michigan University: Fundamentals of Judicial Philosophy - Restraint
• The 'Lectric Law Library: Notable Cases on Constitutional Issues

Resources

• C-SPAN: Judicial Activism vs. Judicial Restraint