- Judicial restraint
Judicial restraint is a theory of
judicial interpretation that encouragesjudge s to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. [http://www.bartleby.com/59/14/judicialrest.html] It is sometimes regarded as the opposite ofjudicial activism .In deciding questions of
constitutional law , judicially-restrained jurists go to great lengths to defer to the legislature. Judicial restraint requires the judge to uphold a law whenever possible. Former Associate Justice Felix Frankfurter, a Democrat appointed by Franklin Roosevelt, is generally seen as the "model of judicial restraint." [A Justice for All, by Kim Isaac Eisler, page 11; ISBN 0-671-76787-9]Judicially-restrained judges respect stare decisis, the principle of upholding established precedent handed down by past judges. [http://www.time.com/time/magazine/article/0,9171,961645-6,00.html] When the late Chief Justice Rehnquist overturned some of the precedents of the Warren Court, he was not following the theory of judicial restraint. [http://www.time.com/time/magazine/article/0,9171,961645-6,00.html]
Related theories
Minimalism
Judicial minimalists argue that judges should put great emphasis on adherence to "
stare decisis " andprecedent . Minimalists argue that judges should make only minor, incremental changes to constitutional law in order to maintain that stability. They ask judges to do this by creating small, case-specific rulings rather than broad, sweeping rulings.Political question doctrine
The
political question doctrine encourages courts to decline to rule in certain categories of controversial cases. Under this theory, a court acknowledges that the Constitution might have been violated but declines to act. It is often described as a type of judicial restraint, although it can be considered a form of judicial activism against plaintiffs whose rights have been violated and find their cases dismissed.ee also
*
Judicial activism
*Separation of powers
*Luther v. Borden - sometimes called the first instance of judicial restraintReferences
Wikimedia Foundation. 2010.
