Judicial Restraint

The term judicial restraint refers to a belief that judges should limit the use of their power to strike down laws, or to declare them unfair or unconstitutional, unless there is a clear conflict with the Constitution. This concept relies heavily on the uniform adherence to case law, which encompasses decisions rendered by other judges on prior, similar cases. To explore this concept, consider the following judicial restraint definition.

Definition of Judicial Restraint


  1. A judicial deference to the intent of legislation, strict interpretation of the Constitution, and strict jurisdictional interpretation of the law.


1810    First referral to a policy of judicial restraint in America

What is Judicial Restraint

Where there are laws, there are often many and varied ways to interpret them. This sometimes comes of a lack of understanding of the intent and planning of the legislative body at the time of the law’s creation, and other times from interpretation based on a judge’s personal views on the matter. There are two camps when it comes to interpreting and enforcing the laws of the land – judicial restraint, which promotes strict, and narrow interpretation; and judicial activism, which involves decisions based on personal and/or political considerations.

While judicial restraint calls for judges to hesitate when confronted with a question of whether or not a law should be struck down, unless it is obviously unconstitutional, even the interpretation of what is “obviously unconstitutional” is often debated. Judges who believe in judicial restraint place a great deal of weight on using the wording of the law and Constitution, rather than what they believe the legislators intended during their construction, to guide their interpretation. This is also known as “strict constructionism.”

Judicially-restrained judges also respect the principle of stare decisis, which promotes consistent, predictable rulings on similar cases, through binding precedent. This means that the decisions handed down by higher court judges, such as appellate and supreme court judges, must be respected in deciding similar cases or issues.

Judicial Activism

Followers of judicial activism believe that the Constitution and laws of the land should be interpreted with the needs and values of modern society in mind. Judges under the judicial activism theory may use their authority to correct what they perceive to be legal injustices, as they mold and redirect laws, and create social policy. These actions are most notable in the protection of civil rights, and of issues considered to be of public and individual morality. Exercise of this power may overrule prior judgments, laws, or acts of Congress.

This is a serious concern for those who believe in judicial restraint, for the obvious reason that it allows a judge to bypass or overturn laws and policies created by Congress. This has the effect, in the minds of many, of damaging the nation’s rule of law, and even the democratic process.

Example of Judicial Restraint vs. Judicial Activism

In the 1950s, schools in the American South remained segregated by race, with black children being confined to a handful of schools that were, in many cases, far from their homes. A group of 13 parents, with the help of the American Civil Liberties Union (“ACLU”), filed a class action lawsuit on behalf of their 20 children, calling for desegregation of schools.

The U.S. Supreme Court heard the case of Brown v. Board of Education in 1954, after the state court had ruled that the school district had rightly complied with precedent set by the Supreme Court in the 1896 case of Plessy v. Ferguson, which ruled that public facilities must maintain “separate but equal” accommodations for black and white people. While the theory of judicial restraint would require the Court to maintain stare decisis, respecting the 1896 ruling, the modern Court embraced judicial activism, choosing to promote the law in a way that was more in line with contemporary social values.

In the case of Brown, the U.S. Supreme Court ruled unanimously to overturn the separate-but-equal standard, offering an updated interpretation of the civil rights afforded by the 13th and 14th Amendments to the U.S. Constitution. In this example of judicial restraint, the Court ruled that the 14th Amendment guarantees equal education in modern times, as it is an essential element of every person’s public life, forming the basis of socialization, professional training, and democratic citizenship.

The Meaning of the Law vs. the Intent of the Law

The matter of judicial activism and judicial restraint is based in the differences between “meaning,” and “intent.” While the meaning of the Constitution, and of other laws, is derived from the written word, or the letter of the law, this does not shed light on the intent of the people who originally created such documents.

When trying to establish and enforce the intent of lawmakers, it is human nature for any one person to interpret the written word according to his own experiences, values, and preferences. Interestingly enough, both judicial activists and the judicially-restrained abhor this idea, that any one jurist might use his personal feelings to rule on cases, or to interpret law.

Public Outcry in Judicial Restraint Example

In January, 2015, star member of the swim team at Stanford University, Brock Turner, dragged a drunk woman behind a dumpster and violently raped her. Two other men, who happened by the scene, stopped the rape, chasing Turner away, and getting the victim to medical care. Turner was charged with a number of felony crimes, and tried in early 2016. Having been provided hard evidence, and eye-witness testimony, the jury convicted Turner of:

  1. Assault with intent to commit rape of an intoxicated woman
  2. Sexually penetrating an intoxicated person with a foreign object
  3. Sexually penetrating an unconscious person with a foreign object

The charges, which did not include the word “rape” by the letter of California law, were enough to make the public cry foul, even before the judge handed down his sentence. Public outrage flared when Judge Aaron Persky sentenced this white student athlete from a prominent white family to just six months in jail.

Even as Turner’s father railed against even this sentence, which requires his son to register as a sex offender for the rest of his life, millions of people questioned how the judge could render such a light sentence for this horrific crime. As it turns out, Judge Persky had, according to judicial restraint, followed the letter of California law.

When the prosecutor announced he had no plan to appeal the sentencing, the public reacted strongly again. According to law, the prosecution can only challenge a sentence that is somehow unlawful. The truth is, Judge Persky’s decision followed the law, as well as the probation department’s sentencing recommendation, and so did not abuse his discretion in rendering the extremely light sentence.

While there was nothing that the prosecution could legally do to change that fact, Judge Persky was tried in the court of public opinion over the following weeks, as hundreds of thousands of people called for his removal from the bench. In this example of judicial restraint guiding sentencing, the people expressed their strong opinions that the punishment should have been more in line with the emotional and social impact of the crime.

In light of the social uproar caused by the outcome of this case, which even caused a number of prospective jurors to refuse to serve on a jury in Persky’s court, the Santa Clara County presiding judge decided to remove him from criminal court hearings. Persky was reassigned to civil cases. Those spearheading the recall movement planned to continue their efforts, noting that this was not a permanent solution, as Persky would be allowed to transfer back to criminal court at any time.

Judicial Restraint in Land Contract

When the Treaty of Paris ended the American Revolution, the colony of Georgia asserted ownership of over 35 million acres of land in an Indian Reserve west of its territory. In 1795, the Georgian legislature divided up this land, which would later become the states of Alabama and Mississippi, into four tracts, and sold them to land developers.

This action, known as the Yazoo Land Act of 1795, was accomplished by the offering and accepting of a number of bribes. When this became known, voters were scandalized, and voted their leadership out in the next election. The new legislators repealed the Land Act, voting to void the transactions completely.

Before the Land Act was repealed, Robert Fletcher purchased a tract of land from John Peck, one of the original purchasers. Fletcher filed a civil lawsuit against Peck after the contracts were invalidated, claiming Peck had sold him the land without holding clear title. The interesting thing is, the two men were colluding in this legal action, hoping the Supreme Court would decide that the Indians had not owned the land to begin with.

The Supreme Court did not cooperate, however, instead ruling that the state’s repeal of the law was unconstitutional, in violation of the Contract Clause of the Constitution. The Court’s opinion, written by Justice John Marshall, declared that the contract for sale was binding, and could not be invalidated, even if it was entered into through deplorable and illegal means. In this example of judicial restraint, the U.S. Supreme Court emphasized its authority to overturn state laws, if they are in conflict with, or contrary to, the Constitution.

Related Legal Terms and Issues

  • Binding Precedent – A rule or principle established by a court, which other courts are obligated to follow.
  • Case Law – Law established by the outcome of previous cases.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Intent – A resolve to perform an act for a specific purpose; a resolution to use a particular means to a specific end.

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