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The Folly of Judicial Restraint in an Age of Judicial Supremacy

In the past few months, we have heard a great deal about “judicial restraint.” In particular, Progressives have complained that if the U.S. Supreme Court strikes down the Obamacare mandate that all Americans carry health insurance, it will be a case of “judicial activism” on the part of the Supreme Court. And conservatives, they say, have long supported judicial restraint, rather than judicial activism. Some conservative commentators have asked whether this categorization is fair. That’s an interesting question from a party perspective, but it pushes aside another question: whether the idea of judicial restraint is compatible with current notions of judicial supremacy?

Where does the idea of judicial restraint come from? In the first part of the twentieth century, the idea is most closely associated with Supreme Court Justice Felix Frankfurter. As Mark Graber of the University of Maryland School of Law notes in a recent Law review article, “Frankfurter was the leading advocate of a restrained judiciary in constitutional cases.” Frankfurter argued that the Court should defer to the democratic majorities, which found their expression in the legislative branch, for “it is not the business of this Court to pronounce policy.” Moreover, he wrote, “this Court’s only and very narrow function is to determine whether within the broad grant of authority vested in the legislatures they have exercised a judgment for which reasonable justification can be offered.” Frankfurter was so committed to such deference to the legislature that he held schools were free to expel Jehovah’s Witnesses for refusing to salute the flag. Such judicial restraint, it would seem, can be problematic. After all, we do not live in a democracy, or even in a simple representative democracy. The United States is a constitutional republic. That constitutional republic presumes that the constitution is supreme, not the legislature. The trouble with modern notions of judicial restraint, therefore, is that they can undermine constitutional democracy.

Frankfurter operated in a very different constitutional world than our own. If there is one major difference it is the rising importance of the idea of judicial supremacy. Judicial supremacy is the idea that it is the job of the Supreme Court, and only of the Supreme Court to say what the Constitution means–to decide what is an is not a constitutional use of power. Whereas in the founding era and for much of American history it was common to believe that each branch had the duty to determine for itself what the Constitution meant, nowadays, the consensus is that that job belongs only to the Supreme Court. When President Bush signed the McCain-Feingold campaign finance law, he did so even though he had “serious constitutional concerns.” In the founding era, by contrast, a President would veto a bill only if he found it to be unconstitutional. But President Bush held it was the job of the Court to decide such things.

Once the other two branches of government believe it is not their job to determine the constitution’s meaning, the idea of judicial restraint makes no sense. Judicial restraint presumes that the other branches do their best to stay within the confines of the powers delegated to them by the constitution. But with the rise of judicial supremacy, the other branches are no longer trained to think about whether their actions are constitutional. They have chosen to pass on that question, and give it to the Supreme Court. Unless and until the other branches reclaim their coordinate authority to judge the meaning of the Constitution for themselves, the idea of judicial restraint is a mistake. If Congress does not think it is their job to determine the meaning of the Constitution, and if the Court defers to them, the Constitution ceases to be the fundamental law of the land.

Reader Discussion

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on May 14, 2012 at 11:44:11 am

"Whereas in the founding era and for much of American history it was common to believe that each branch had the duty to determine for itself what the Constitution meant, nowadays, the consensus is that that job belongs only to the Supreme Court."

While the Legislative and Executive branches can make their own determination of Constitutionality, the Supreme Court still holds the upper hand, and can still rule the best efforts of these co-equal branches to be in error. I suppose the Legislature could effect some program or other, and the Executive could enforce it in agreement with and according to the enacted legislation, while ignoring the Supreme Court ruling against. But this action does not bind future Congresses or Executives. I see this as detrimental to any form of long term stability. Necessarily, to preserve good order of governance, the job of Constitutional determination must reside with the Supreme Court; there must be a body with the final say-so.

Any determination of Constitutionality by the Legislative and Executive branches then can only be in the nature of a first and best attempt. We are seeing that as today's legislative passions play out, and we are seeing that these two branches have become lazy in their applications. This is neither a measure of nor call for judicial activism; it is merely a reflection of nothing but – laziness.

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Steve S.
on May 14, 2012 at 13:20:19 pm

We need a substitute for the term "judicial activism," which is actually a neutral term; judges, as you point out, *should* be "activist" when the other branches exceed their Constitutional bounds.

I suggest "judicial antinomianism" to describe the lawlessness of the "living Constitution" school.

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Thomas Eastmond
on May 14, 2012 at 15:33:11 pm

This is another area where leftists have corrupted the constitution. It was never the intent of the founders to only have the supreme court stop something because it violates the constitution. Remember that both the legislative and executive branches swear to follow and defend the constitution, so the legislature has a duty to not pass legislation they beleive is unconstitutional, and the president has a duty to veto it. They have no right to punt that duty and pass the buck to the court. The only special constitutional authority of the supreme court is they become the last word on stopping a law if, despite their duty, the legislature and executive make an error and pass an unconstitutional law anyway. They also have the power to direct executive action if the executive refuses to obey a valid constitutional law.

If any legeslator or executive object to a law because they beleive it to be unconstitutional it is a copout to say that is not a legit reason to oppose it because only the court decides unconstitutionality. Each branch has its own duty to uphold the constitution. The courts only role is to serve as an additional check and balance if they do the job wrong. One dem legeslator showed his contempt for this duty when he replied to a constituent question that he didn't care what the constitution said, that was the courts job.

This principle also applies to our military, since officers dont take a personal oath to the president, but to uphold the constitution, and uphold LAWFUL orders. Of course in most cases they should presume an order is lawful and constitutional, but they also have a duty, upheld for german officers in the Neurenberg trials, to disobey an order if they are certain it is unlawful.

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richard40
on June 07, 2013 at 17:51:10 pm

Great label, although I doubt that such liberals believe in the sovereignty of the Living God. The only reason that we can tend to be lawless in Christianity is because Jesus fulfilled the law and because we believe in an omnipotent, gracious savior - but where do we go when we don't trust man and don't believe in God either?

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Steve Cobb

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