Judicial Activism VS. Judicial Restraint
(Strict Interpretation VS. Loose Interpretation)
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 counter majoritarian 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.