judicial activism and restraint
American courts are among the most powerful in the world. In addition to settling a wide range
of criminal and civil cases, courts also interpret ambiguous laws, a process known as statutory
interpretation. American courts also exercise the power of judicial review—that is, the power to
strike down legislation that they believe is contrary to the U.S. Constitution. Judges vary in their
approach to legislation along a broad continuum, from advocates of judicial restraint to
advocates of judicial activism. Those who advocate judicial restraint strictly adhere to the letter
of the laws whenever possible, supporting the validity of those laws as much as possible. Those
who advocate judicial activism take a broader view and attempt to discern the fundamental
principles underlying legislation, whether those principles have been specifically spelled out in
the laws or not. Therefore, activist judges are much more likely to strike down federal legislation
when such legislation is thought to violate the principles underlying the Constitution. In effect,
activist judges make their own laws by selecting which laws will stand and which will not.
Advocates of judicial activism often point to what they consider to be past judicial successes in
advancing civil rights and liberties, thus encouraging judges to remedy injustices wherever they
find them. Those who favor judicial restraint caution judges about undermining democratic
processes by substituting their own judgments for those of the people's elected representatives.
The exercise of judicial review is consistent with the system of separation of powers and checks
and balances that the framers of the U.S. Constitution adopted, but this power is in tension with
democratic principles. Whereas the people elect members of the other two branches of
government, the president appoints members of the judicial branch subject to confirmation by the
U.S. Senate. Similarly, whereas members of the elected branches have fixed terms in office,
members of the judiciary serve "during good behavior," or until they die, retire, or are
impeached, convicted, and subsequently removed from office. Because of their insulation from
the electorate, scholars sometimes refer to the courts, and particularly the U.S. Supreme Court, as
a countermajoritarian institution.
Given this tension, it was inevitable that conflict would emerge over judicial exercises of power.
Initially, Supreme Court justices all issued separate opinions on cases that came before them.
When John Marshall became chief justice in 1801, he persuaded the Court to issue majority
opinions to bolster its prestige. In one of the most famous of these decisions, Marbury v.
Madison (1803), Marshall helped establish the power of judicial review of congressional
legislation by declaring the Judiciary Act (1789) unconstitutional. This case set an important
precedent, as Marshall asserted that the Supreme Court was constitutionally empowered to sit in
judgment of the other two branches of government—a stance that ultimately made judicial
activism possible.
Over the next 30 years, the Marshall Court continued to read the Constitution expansively to
affirm broad federal powers. Thus, in McCulloch v. Maryland (1819), the Court upheld the
constitutionality of the national bank as an implied power. Similarly, in Gibbons v. Ogden
(1824), the Court held that a federal pilotage license granted under Congress' authority to
regulate interstate commerce preempted a New York law that attempted to grant a steamboat
monopoly on its waters. In such cases as Dartmouth College v. Woodward (1819), the Court took
a strong stand on behalf of property rights. Similarly, in a number of cases, the Marshall Court
struck down state laws that it believed to be in conflict with federal laws or treaties. In Cohens v.
Virginia (1821), for example, the Court ruled that judgments in criminal cases could be appealed
from state to federal courts, thus elevating the prestige and importance of federal courts over
those of the states.
Both Presidents Thomas Jefferson and Andrew Jackson questioned what they considered to be
the Court's attempt to monopolize constitutional interpretation. Both argued that all three
branches had the responsibility of interpreting the Constitution for themselves. When Jackson
vetoed a congressional bill to renew the Bank of the United States in 1832, he refused to be
bound by the Supreme Court's earlier decision in McCulloch v. Maryland that this bank was
constitutional. Later, although acknowledging that Supreme Court decisions must govern in
individual cases, President Abraham Lincoln, who opposed the Court's decision in Scott v.
Sandford (1857), cautioned the people against allowing the Court to determine all constitutional
issues.
Over time, most American politicians came to recognize that the courts had a unique role to play
in interpreting the U.S. Constitution, but the exact nature and extent of that role remained
controversial. Justices had to decide whether to base their decisions simply on the basis of the
Constitution or on the basis of more general principles for which they believed the Constitution
stood. Justices also had to choose among a variety of methods of constitutional interpretation.
Advocates of judicial restraint tended to base their decisions on closely interpreting the words of
the document, on precedents, and on the intentions of those who formulated and ratified various
constitutional provisions. Advocates of judicial activism often focused on broader constitutional
principles, on what they perceived as the likely consequences of their decisions, and on what
they thought the Constitution should mean within the modern context.
The Marshall Court has come down through history as an activist Court, and yet the only
national law it struck down was a provision of the Judiciary Act (1789) that it voided in Marbury
v. Madison. Moreover, although the Court headed by Chief Justice Roger B. Taney, which has
been remembered as one that advocated restraint, was generally much more deferential to
legislative judgments, in Scott v. Sandford (1857), the Taney Court voided the Missouri
Compromise of 1820 and declared that African Americans were not and could not be U.S.
citizens. Ironically, in writing this decision, Taney claimed not to be enforcing his own views but
the views of those who had originally written the Constitution. The Court's prestige suffered in
the aftermath of Taney's tenure, but it took a more activist stance as the 19th century came to an
end.
Although the picture is considerably more complex than many popular histories acknowledge,
historians generally agree that from about 1890 to 1937, the Supreme Court was dominated by
justices who favored laissez-faire economics, often finding support for decisions striking down
governmental regulations in such broadly worded provisions of the Constitution as the due
process clause, which was a clear case of judicial activism. For example, in United States v. E.C.
Knight Co. (1895), the Court severely limited the reach of the Sherman Antitrust Act by
distinguishing between the regulation of manufacturing (in this case, the establishment of a
monopoly in sugar refining) and the subsequent commerce of such items. Likewise, the Court
struck down a state law regulating the hours of bakers in Lochner v. New York (1905), ruling that
this law impermissibly interfered with workers' freedom of contract. Similarly, in Hammer v.
Dagenhart (1918), the Court invalidated a federal law limiting child labor on the basis that this
was a matter of state rather than federal concern. In this latter case, Justice Oliver Wendell
Holmes specifically accused the majority of ignoring the harms of child labor and reading its
own economic views into the Constitution.
When Franklin D. Roosevelt assumed the presidency in 1933, he proposed a wide range of
governmental programs that became known as the New Deal. Many of these laws repudiated
laissez-faire theories of economics by calling for the exercise of broad governmental powers to
deal with the Great Depression. Although it made some exceptions, the Supreme Court struck
down most of the laws that it examined, relying on legal arguments that it had been developing
since 1890. After being reelected in 1936, Roosevelt proposed what came to be known as the
Court-packing plan. It sought to add one justice up to 15 for every justice over the age of 70 who
did not retire. Although Roosevelt lost the battle for this bill, he arguably won the war.
In West Coast Hotel Co. v. Parrish (1937) and National Labor Relations Board v. Jones &
Laughlin Steel Corp. (1937), both decided in 1937, the Court—in apparent reaction to
Roosevelt's plan—made what is often called "the switch in time that saved nine" by giving far
broader readings to congressional powers under the commerce clause (and thus exercising
judicial restraint by deferring to legislation) than it had previously been willing to do. Justices
were thereafter extremely deferential to governmental programs regulating the economy,
although they began to look more closely at programs that impinged on the guarantees of civil
rights and liberties found in the Bill of Rights and the Fourteenth Amendment.
The advent of Chief Justice Earl Warren in 1953 brought another round of judicial activism to
the Supreme Court, but it centered primarily on expansive definitions of civil liberties. In
perhaps the most important case of the century, Brown v. Board of Education (1954), the Court
overturned the doctrine of "separate but equal" that a previous Court had endorsed in Plessy v.
Ferguson (1896) and which served as the basis for a massive system of segregation in this
country. The Warren Court declared that the system of racial segregation must come to an end in
schools and other public places.
Using the due process clause of the Fourteenth Amendment and a process generally known as
selective incorporation, the Warren Court applied most of the provisions of the Bill of Rights,
which had previously applied only to the national government, to the states as well. In such cases
as New York Times Co. v. United States (1971)—involving attempted government suppression of
the publication of the Pentagon Papers—and New York Times Co. v. Sullivan (1964)—dealing
with the libel of public officials—the Court significantly expanded protections for First
Amendment rights like freedom of speech and freedom of the press.
In a series of decisions in the 1960s, the Warren Court also gave much wider protection to the
rights of criminal defendants. In Mapp v. Ohio (1961), for example, the Court applied the
exclusionary rule to the states; in Gideon v. Wainwright (1963), it expanded the right to counsel;
and in Miranda v. Arizona (1966), it insisted that police officers give warnings to suspects before
interrogating them. The Court overturned an earlier decision to declare in Baker v. Carr (1962)
that it would now consider cases of state legislative apportionment, and in Reynolds v. Sims
(1964), it applied the principle of "one person one vote" to both houses of state legislatures. In
Griswold v. Connecticut (1965), the Court further struck down an intrusive Connecticut birth
control law by broadly interpreting the Constitution to establish a right to privacy.
Although these liberal decisions found many supporters, such judicial activism stirred
considerable opposition both on and off the Court. Sometimes while indicating their own support
for the liberal direction of Supreme Court decisions, such justices as Felix Frankfurter and John
Marshall Harlan II advocated greater judicial restraint, arguing that the Court was going far
beyond the language of the Constitution and weakening democracy by usurping the role of the
people's elected representatives. In 1968, presidential candidate Richard Nixon blamed the
Court's decisions for rising crime rates and promised to appoint strict constructionists to the
Supreme Court if elected to the presidency.
It is not surprising that hearings over judicial appointments have sometimes become
battlegrounds for advocates of judicial restraint and judicial activism. Opposition to key
decisions of the Warren Court led in part to the Senate's failure to approve President Lyndon B.
Johnson's efforts in 1968 to elevate liberal justice Abe Fortas to the chief justiceship.
During his tenure as president, Nixon appointed four justices to the Court, including a chief
justice. Yet not only did the Court unanimously vote to deny his claim of executive privilege in
the case of United States v. Nixon (1974) in the midst of the Watergate scandal, but it rendered
some activist decisions of its own, most notably in Roe v. Wade (1973), where it extended the
right to privacy to strike down most state laws restricting abortion. Two of Nixon's nominees to
the Supreme Court sparked heated political debate, as both Clement Haynsworth and G. Harold
Carswell were rejected before Harry Blackmun was finally confirmed in the vacant seat.
More than 15 years later, President Ronald Reagan also faced opposition to his nominations
when the Senate rejected Reagan's nomination of Robert Bork, the conservative critic of the
judicial activism of the Warren Court, and Douglas Ginsburg, who withdrew after allegations of
marijuana use. In President George Bush's administration, too, Clarence Thomas was narrowly
confirmed after allegations of sexual harassment were raised against him. Although many of
these disputes over appointments can be attributed to the personal conduct of the nominees, some
question whether personal foibles have not been used as an excuse to prevent justices who
support either activism or restraint from joining the Court.
Despite political battles over appointments, however, Nixon was in effect true to his word, as the
Court under William Rehnquist, chief justice from 1986 to 2005, was generally considered one
that practices judicial restraint. One contemporary case that is often used as an example of
judicial restraint is the 1989 decision in DeShaney v. Winnebago County Department of Social
Services. After Randy DeShaney beat his son so badly that he fell into a coma and required
institutionalization, his mother sued the state for damages under the due process clause of the
Fourteenth Amendment, arguing that the state's social workers, who had intervened in a number
of previous cases where the boy had been abused, had violated the Constitution by failing to
protect him. In a six to three decision for the Court, Rehnquist refused to rule against the state,
arguing that however tragic the boy's situation was, it was the result of his father's actions and
not those of the state. In a passionate dissent, Justice Harry Blackmun (often classified as a
judicial activist) accused his brethren of giving an overly formalistic reading of the Constitution,
maintaining that a formal and legalistic reading of the law could result in an injustice.
The perception of judicial activism and judicial restraint is often in the eyes of the beholder.
Many of those who once welcomed far-reaching decisions by the liberal Warren Court have
looked askance as the Burger and Rehnquist Courts have issued more conservative decisions
restricting congressional powers on federalism grounds and limiting the scope of Fourth
Amendment rights against unreasonable searches and seizures. Judges who are perceived as
models of restraint in one area of the law may be examples of activism in others and vice versa.
The Constitution and the judicial system itself impose certain interpretative limits on the extent
to which judges and justices can read their own opinions into the Constitution, but the system of
presidential appointment and Senate confirmation remains the ultimate control over such
activism. This system of appointment and confirmation can respond both to arguments that
conservative advocates of judicial restraint are likely to give inadequate attention to rights—like
the right of privacy—that previous Courts have affirmed, and to criticisms that more liberal
advocates of judicial activism are likely to substitute their own judgment on controversial issues
for those of the people. This system is likely to ensure a continuing colloquy over the roles that
judges should play.