Judicial deference, also described as judicial restraint, is the view that courts—and in particular the Supreme Court—should uphold laws enacted by the elected branches of government unless those laws clearly violate the Constitution. On The Bob Zadek Show, the concept was discussed as the central dividing line in a long-running conflict over the role of the judiciary in American life.
Defining the doctrine
Damon Root, a senior editor of Reason Magazine and author of Overruled: The Long War for Control of the U.S. Supreme Court, described the combatants in what he called a war for control of the Supreme Court as liberals and progressives on one side and conservatives and libertarians on the other, with conservatives also fighting libertarians within the ranks of the right. He characterized the philosophy of judicial deference, or judicial restraint, as holding that the courts are an unelected and therefore least democratic branch, and should defer to the elected branches and to the will of the people as expressed through lawmakers. Against that, he set a vision of the courts as active and aggressive in policing the other branches, undemocratic by design, and sometimes stopping the will of the people when the Constitution requires it—a vision of the Constitution as a document that protects individual rights and restricts government power Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Root said the phrase judicial activism is typically used as an insult, describing decisions the speaker dislikes. He noted that conservatives for the last 30 years have complained that liberals are the activists because they invented a right to privacy and rights to abortion not grounded in the Constitution, while liberals accuse conservatives of the same crime, arguing that the Second Amendment protects a collective rather than an individual right and that Heller was an example of conservative judicial activism Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Josh Blackman, in a later episode, defined deference in terms of accountability: the elected branches are accountable because voters can throw them out of office, while Supreme Court justices are not elected and serve for life. The preference, he said, is that the elected branches make tough decisions and not the unelected branch. Historically this was accomplished by the court deferring—letting the elected branches decide—and unless Congress, the president, or the state governments really screwed up, the court would let the state do what it wanted. Blackman said this model of deference was very popular during the New Deal in the 1930s, but that in the 1950s and 1960s the court began creating exemptions and exceptions where deference was not warranted and the court would second-guess the legislature, a move away from deference that paved the way for the court to assert broad power over all manner of social legislation Eight-Dimensional Chess (2020).
Bob Zadek pressed Blackman on the meaning of “screwed up,” suggesting it meant enacting legislation that violates the Constitution rather than making a bad policy decision, and invoking the Supreme Court’s assumption since Marbury v. Madison of the responsibility of judicial review as guardian of the Constitution. Blackman agreed he had been glib, and said that unless there is a clear violation of the Constitution the court will simply step out, though the Constitution does not always give clear guidance and judges sometimes must use their own discretion. He added that he is not a fan of deference in all contexts and thinks there are instances where the court should be more muscular, but that once courts shed deference they become something of a super-legislature, making nominations contentious Eight-Dimensional Chess (2020).
Progressive roots and the New Deal
Zadek offered his own summary of deference: that courts should bend over backwards to find laws constitutional because laws were passed by representatives of the people, giving courts a bias in favor of finding a law constitutional. He described a common thread linking progressives, who favor top-down control by a small number of wise elected officials, to Felix Frankfurter and Oliver Wendell Holmes, who he said defer to the wisdom of the legislature even where individual rights may be sacrificed. In Zadek’s view, deference elevates the elected branches above the Supreme Court, which almost subordinates its own role in American life Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Root agreed that the original progressives of the late 19th and early 20th century wanted the courts to play a very small role in questions of the government’s role in the economy, and thought the courts should almost never declare an act of a state legislature or Congress unconstitutional. The burden of proof to declare an economic regulation unconstitutional was, in their view, so high it could almost never be met, with judges effectively putting a thumb on the scale in favor of the law. He said Felix Frankfurter—a progressive activist, law professor, and advisor to Franklin Roosevelt’s New Deal before Roosevelt appointed him to the Supreme Court—believed the elected branches should be given a wide degree of latitude by the courts Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Root also discussed the 2012 decision in which Chief Justice John Roberts cast the deciding vote to uphold the healthcare law, and in doing so said it was an act of judicial restraint, stating that it is not the court’s job to protect the people from the consequences of their political choices. Root said Roberts did not necessarily like the law but felt his role was to defer to Congress and the president, and that most conservatives and libertarians disagreed, believing the Constitution told him to strike the law down. Root cited Roberts and Robert Bork as examples of a consistent view that courts should be hands-off of democratically enacted laws Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Deference and the administrative state
In a 2016 episode, Zadek told a caller that the Ninth and Tenth Amendments got lost through judges—“It’s all Supreme Court’s handiwork”—and that they were lost because the Supreme Court, in what is called judicial deference, allowed Congress to be its own policeman as to what is constitutional. He said the fault lies foursquare in the Supreme Court, while Congress behaved as it naturally would by collecting power, and that it was the Supreme Court’s job to stop Congress if it read the Ninth and Tenth Amendments aggressively Carol Berkin on The Bill of Rights No One Wanted (2016).
A caller named Roger raised the power of the regulatory state, saying the major challenge to liberty today is the regulatory state, which is not even elected, so that even a majority cannot control it; he cited data that people can vote on something like half a percent of all employees of the federal government, with the other 99.5 percent outside the electoral process. Zadek responded that there is a theory that the entire administrative part of government is unconstitutional as an unfair delegation of power from Congress to the executive branch, and noted a principle of law called the non-delegation principle, which says Congress lacks the constitutional power to delegate legislative functions to the executive. Roger cited phrases in Obamacare such as “the Secretary shall decide,” saying Congress punts to the regulatory state Carol Berkin on The Bill of Rights No One Wanted (2016).
The presumption of liberty
Randy Barnett, in a 2020 episode, framed the issue as who gets the benefit of the doubt when a judge decides whether legislation is within the power of a legislature to enact—whether within the enumerated powers of Congress or within what is called the state’s police power. He described three approaches. The first is a presumption of liberty, in behalf of liberty, which the legislature can rebut by presenting evidence or argument. The second is a presumption of constitutionality, where the citizen must come in and rebut the presumption. The third, which he said the courts have taken in many cases and which Judge Barrett defends under certain circumstances, is that laws are presumed constitutional and citizens are not allowed to contest or rebut the presumption: as long as any reasonable person would think the law reasonable—and by definition there would always be some reasonable person who would—the law is constitutional, and judges get out of the way and let the legislatures act as long as any conceivable rational basis for the law can be identified, even if the legislature or executive never offered that reason and the judges come up with it themselves. Barnett said it is over that third approach that he and Judge Barrett disagree Amy Coney Barrett on Trial (2020).
Across episodes
The topic recurs across four episodes spanning 2014 to 2020. The 2014 Damon Root episode supplies the historical frame—progressive roots, the New Deal, and Roberts’s 2012 vote—while the 2020 Josh Blackman episode restates the accountability rationale and dates the turn away from deference to the 1950s and 1960s. The 2016 Carol Berkin episode treats deference as the mechanism by which the Ninth and Tenth Amendments were lost and connects it to the non-delegation principle and the regulatory state, and the 2020 Randy Barnett episode reframes the question as a choice among three presumptions rather than a simple restraint-versus-activism dichotomy. The excerpts show development in framing rather than in the underlying question.
What the sources do not cover
The excerpts do not state the holding or amendment at issue in Heller, Lochner, or Marbury v. Madison beyond the characterizations the speakers give. They do not identify the healthcare law by name or the bill that enacted it, nor the state or city involved in any case. Several sections break off mid-exchange, and the excerpts do not carry the discussion past the points recorded here.