What is Judicial Restraint?

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  • Written By: Karyn Maier
  • Edited By: Bronwyn Harris
  • Last Modified Date: 19 March 2020
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Judicial restraint is a philosophy that upholds the tenets of democracy by meeting a responsibility to limit power in deference to policy governed by constitutional law. In short, judges who exercise judicial restraint do so to adhere to the specific language of the Constitution when ruling. However, if meaning in a particular area is unclear, a restrained judge may attempt to interpret the spirit of the law as the authors of the Constitution intended.

One of the primary goals of judicial restraint is to preserve the balance between the three branches of government--judicial, legislative, and executive. To that end, judges who model restraint engage in law review rather than promote the modification of existing law. Further, the viewpoint of judicial restraint dictates that a judge must stand consistent with previous findings that have set legal precedence, a policy referred to as stare decisis. In fact, conformity of this nature is the backbone of this conservative view. Its politics support the values upon which the American justice system was based: majority rules.


Similar principles are applied when ruling on a matter of statutory law or administrative law. In fact, judicial restraint calls for the review of protocols drafted by related agencies authorized to enact legislation in these areas by Congress. Again, in the event that the language or meaning of such legislation is unclear, a restrained judge is obligated to defer to the opinion of leading agency officials. This deference is deemed warranted since Congress appointed such individuals based on their expertise in such matters.

There is a great deal of debate over the necessity or even the applicability of this restrictive attitude toward judicial conduct. For one thing, there are degrees of judicial restraint or, at least, varying levels of conservative behavior among jurists. For example, restrained judges are sometimes referred to as strict constructionists or textualists. This level of conservatism disregards the proposal that the Constitution is a “living” document intended to evolve with those it governs. In other words, those who rule under these terms do so by the strict letter of the law and nothing more.

On the other hand, some restrained jurists prefer to define their approach as interpretivism. That is, the opportunity to interpret the law is permitted, as is the right to appeal to another body of government for guidance. While still considered a position of judicial restraint, it is much less inhibited.

In contrast to judicial restraint is judicial activism. The latter is used as vehicle to overrule precedent based on the belief that a Constitutional right has been compromised. A clear example of where judicial activism is often demonstrated is the Supreme Court and Appellate Court. Both bodies have gained a reputation for reversing previous decisions to right a faulty judgment.


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