Legal Fiction and the Mysterious Case of Judicial Restraint; Supreme Court; Whether You Call It Restraint or Activism Depends on Your Politics

Article excerpt

The concepts of judicial restraint and activism need to be stricken from our American political vocabulary. Judicial restraint refers to strict interpretation of the Constitution, refraining from making law by showing deference to democratically elected institutions such as Congress and the president, as well as prior court decisions. Activism, on the other hand, is when courts impose their own preferences by "legislating from the bench," disregarding the actions of democratically elected representatives and overturning precedent established from past legal decisions.

According to some, the judicial restraint is to be revered and activism reviled. But, like beauty, just what judicial activism and restraint are is in the eye of the beholder. Consider an early example, when the terms came into vogue in response to the "activist" Warren court of the 1950s and 1960s which, among other things, extended civil rights and expanded rights of the accused, making it harder for police to arrest and courts to convict criminals. But Justice Hugo Black pointed out that the court was doing nothing more than upholding the Constitution and the Bill of Rights, including the guarantees of protection against unreasonable search and seizure, the right to an attorney, a speedy trial, the ability to confront an accuser, and so forth. Black pointed out that these were designed to make it harder, not easier, to convict criminals. In effect, his was an argument of judicial restraint.

Still, conservatives decried it as activism and Richard Nixon won the presidency in 1968 in part by railing against the "excesses" of the court and a vow to nominate justices who would respect the elected branches.

If the difference between activism and restraint was murky then, it is impenetrable now. Restraint and activism are a judicial- Rorschach test, with justices and the public applauding a courageous court or decrying a cowardly decision depending on how they see a decision and the color of their political stripes.

No other example better illustrates the emptiness of the terms than Justice Scalia in his various positions on the voting rights and one of the gay marriage cases handed down last month. In Shelby County v. Holder (the voting rights case), Scalia sat comfortably on the side of the court that struck down section 4(b) of the Voting Rights Act, the effect of which is to gut much of that legislation. …