Judicial activism and restraint

Published 5:17 pm Wednesday, February 28, 2018

By Jason Swindle
Senior partner, criminal defense attorney at Swindle Law Group

You may have heard phrases like, “Judge Brown is an activist judge” or “Judge Collins strictly adheres to the plain text of the Constitution.” These phrases and buzz words are typically used when criticizing or praising a judge. 

But, what is an “activist judge?” What is “judicial restraint?”

Before I begin, please keep in mind that this is a broad column dealing with the two philosophies. Also, these philosophies of interpreting law have been utilized by both liberal and conservative judges. While “judicial activism” is oftentimes linked with left wing judges, there are some conservatives who engage in the same behavior. 

Judicial Activism interprets the Constitution from the perspective that the founding document is not “set in stone.” Rather, it should be viewed in conjunction with modern values and culture. By using this approach, judges can exercise power to correct what they personally perceive as a legal injustice without focusing on the plain text, meaning, or original intent of the Constitution as it was written and approved by all states in the 1700s. 

Activist judges can significantly upset the supposed co-equal three branches of government. The legislative branch is affected the most. For example, an activist judge may invalidate a law that Congress has created if he or she opposes the political reasons, ramifications, or consequences of the law.  Judicial Restraint holds the opposite view. It advocates that the courts uphold all acts and laws of Congress and legislatures unless they violate the United States Constitution.

This philosophy originated in the late 1700s. As the Supreme Court of the United States (SCOTUS) was developing its independence as a co-equal branch, judicial restraint was the prevailing and logical judicial philosophy.

As time passed, courts utilizing judicial restraint began to adhere to the practice of stare decisis. This is when a question comes before the court involving a prior interpretation of the Constitution. The courts will generally defer to that prior interpretation unless that ruling was Constitutionally wrongly decided by a prior court. Additionally, judicial restraint prevents judges from allowing their personal views to interfere with their duty to interpret law. 

Of the two philosophies, judicial restraint is the best approach for four primary reasons — the purpose of the document, separation of powers, consistency and the amendment process.