Judicial restraint is the judicial philosophy holding that courts, as the unelected and least democratic branch of government, should defer to the elected branches and to the will of the people as expressed through lawmakers. On The Bob Zadek Show, guests discussed the doctrine across four episodes, treating it as one side of a long-running conflict over the role of the Supreme Court.
Defining the doctrine
Damon Root, a senior editor of Reason Magazine and author of Overruled, described the combatants in what he called a war for control of the Supreme Court: liberals and progressives on one side, conservatives and libertarians on the other, and conservatives against libertarians within the ranks of the right. On one side, he said, are advocates of judicial deference or judicial restraint, who argue that because the courts are unelected they should defer to the elected branches and to the will of the people as expressed through the lawmakers. On the other side is a vision of the courts as active and aggressive in policing the other branches, undemocratic by design, and 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. Conservatives, he said, have complained for thirty years 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 conservative judicial activism. Root said the term is used loosely and not specifically. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Bork, Roberts, and deference in practice
Root identified Robert Bork and John Roberts as good examples of the consistent view that courts should be hands-off of democratically enacted laws and should not interfere with the elected branches. He noted that in 2012 Roberts cast the deciding vote to uphold the healthcare law, and in doing so said it was an act of judicial restraint: “It’s not our job to protect the people from the consequences of their political choices.” Root said Roberts did not necessarily like the healthcare law but felt his role was to defer to Congress and the president, and that this surprised many people because Roberts is a conservative Chief Justice appointed by George W. Bush with Republican Party associations, yet he saved President Obama’s key law. Most conservatives and libertarians, Root said, disagree and think the Constitution told him it was his job to strike down the law. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Josh Blackman, in a later episode, described the model of judicial restraint and called Robert Bork its most eloquent modern advocate. Bork, who was nominated to the Supreme Court but did not get a seat, argued that in wide fields of life the elected branch should be able to do whatever they want, and was candid about it. Blackman said the more modern approach is not simply deferring reflexively but trying to decide whether the government’s stated rationale is actually the reason why it is acting. He offered the example of Philadelphia telling a Catholic adoption agency it had to let gay parents adopt children; the city said it was enforcing its non-discrimination policy, but there was evidence the city was actually hostile to Catholicism. Blackman said this sort of peeling behind the surface to look at the government’s true motivations is a thread in all modern Supreme Court jurisprudence, and that both parties are willing to flex their muscles. Eight-Dimensional Chess (2020)
Restraint as selective
David Kaplan, author of The Most Dangerous Branch, said that when he presented his idea to the justices he talked to, one of the liberals and one of the conservatives said the exact same thing to him: “I half agree with you.” Kaplan said the problem is that they all favor judicial restraint except when they don’t. He said that for the first time in modern times one can predict the vote of almost every justice on the key social issues, and asked what the point of having the Court is if you know how they will rule ahead of time. In theory, he said, you want a Supreme Court applying different rules than politicians do, ruling on neutral principles and based on the law instead of merely expressing partisan preferences. He cited Bush v. Gore, the gun control ruling, the same-sex marriage case, Citizens United about campaign finance, and Shelby County about the Voting Rights Act of 1965 as cases where the votes were known ahead of time. Demystifying the Supreme Court (2019)
Kaplan described himself as a political liberal who was thrilled when the Court ruled what he called the correct way twenty or thirty years earlier, and said it is not so easy taking that position now that conservatives are clearly in control. He said he is bemused at seeing conservatives who spent their careers attacking the liberal Supreme Court for intervening now rushing to the Supreme Court and supporting its intervention in areas like the Affordable Care Act. He said Obamacare clearly is constitutional and that those who argue it is not barely present plausible arguments. Demystifying the Supreme Court (2019)
Kaplan also recounted that Justice Brennan, the great liberal lion of the Court from the ’50s to 1990, would hold up his hand and slowly count out five fingers and say, “With five votes, you can do anything.” Kaplan said the fact that the Court has the power, and that the public by and large accepts that it has the power, ought not to be a basis for the Court to continually intervene. Demystifying the Supreme Court (2019)
Roberts as a possible check
Kaplan said John Roberts showed in the first Obamacare ruling in 2012 that he knew what judicial restraint correctly applied looked like. He added that Roberts has not been restrained in his votes in any number of areas, striking down campaign finance regulation and gutting the Voting Rights Act of 1965, and said Roberts is a true conservative who should not be mistaken for a middle-of-the-roader. Kaplan said this Chief Justice, who now constitutes what passes for the middle of the Court and the swing justice after Justice Kennedy retired, more than the other conservatives understands that the Court’s prestige and therein its power is more important than any particular vote in a particular case, and that he thinks this Chief will put the needs of the Court above his own particular interests. Demystifying the Supreme Court (2019)
Across episodes
The topic recurs in the 2014 Root episode, the 2019 Kaplan episode, and the 2020 Blackman episode. Root frames restraint as one side of a war for control of the Court and treats Roberts’s 2012 vote as its serious application; Kaplan, five years later, treats the same vote as evidence that Roberts knows what correctly applied restraint looks like but describes restraint as selectively invoked by justices generally; Blackman, a year after that, says the reflexive deference associated with Bork has given way to an inquiry into the government’s true motivations, and that both parties now flex their muscles. The excerpts show the doctrine’s defenders shifting from Bork’s candid deference toward a more probing test, while the charge that restraint is applied selectively persists from Root’s account through Kaplan’s.
What the sources do not cover
The excerpts do not state the holding or amendment at issue in Heller, Lochner, Bush v. Gore, Citizens United, or Shelby County beyond the brief characterizations the speakers give. They do not give the name of the healthcare law beyond Obamacare and the Affordable Care Act, nor the date or outcome of the Philadelphia adoption case beyond Blackman’s description. The excerpts contain no discussion of the founding-era debates over judicial review, and the 2014 and 2020 excerpts break off mid-conversation, leaving the surrounding argument unstated.