Judicial Self-Restraint

Judicial self-restraint refers to self-imposed restrictions on judicial decision making, often times because a case reflects a political question or lacks standing or jurisdiction.  It allows judges to interpret the law narrowly on a micro-level rather than more general.  This leaves room for judicial activism, not having to bring closure to constitutionality questions, and answering political questions, none of which are supposed to be the primary job of a judge.  By exercising judicial self-restraint, judges allow the legislative and executive branches to develop government policy and don’t get as heavily involved in legislating from the bench.  I believe that not only should judicial self-restraint be exercised, but those judges who fail to wield it are doing more harm than good to the legitimacy of their court and to their reputation and legacy of their judgeship.

Judicial activism can be a reason a judge fails to exercise judicial self-restraint, rather than failure to exercise judicial self-restraint creating an opportunity for judicial activism.  An example of this would be Citizens United vs. Federal Elections Commission (2010).  In that decision, the Supreme Count of the United States ruled 5-4 (along ideological lines) that certain portions of the McCain-Feingold Campaign Finance Reform Law were unconstitutional.  This ruling gave corporations and labor unions the ability to spending unlimited amounts of money in electioneering.  The majority opinion of the court reminded Congress it may not jail or fine citizens, or groups of citizens, for engaging in free speech, and that because the first amendment does not differentiate media from other entities, those parts of McCain-Feingold could potentially allow Congress to limit free political speech in movies, books, and on the internet.  The dissenting opinion, on the other hand, focused more on the fairness or unfairness of elections, should corporations and labor unions be able to spend unlimitedly on elections.  I paraphrase here but one of the quotes of Stevens was, “America cannot function when its elections and constituents are being bought and sold”.  The most apparent examples of the court delegitimizing itself in this case were the fact that the decision was 5-4 (along party lines) and that there were five concurrences written along by the five conservative judges.  After losing the presidency decisively in 2008 to a liberal democrat, that five conservative judges were practicing judicial self-restraint all had different reasons for allowing corporations to spend unlimited amounts of money in federal, state, and municipal elections was obvious judicial activism.  They lost to a liberal democrat and were mad about it.

An example of the Supreme Court failing to exercise judicial self-restraint and thereby creating policy was in Tinker v. Des Moines Independent School District (1969).  In this case, the Court ended up making a ridicules rule called the “Disruption Test”, and applied it to future cases.  The idea that a State’s right to maintain order in their educational system could at times trump a child’s right to free speech wasn’t all that surprising to me.  What was surprising was that they set the bar so high for a case to meet the Disruption Test “standard” (some could also call it “failure to meet standing”) that rarely is a case ever heard where student communication & rights are in questions.  I realize the Court does not rule on hypothetical situations, but one would think they’d be more clear in their ruling in this case that it would in turn avoid many more petitions for the Court to hear cases along the same lines as this one.  By continuing to give generalized opinions that continue to invite more challenges along the same issues, the Supreme Court definitely de-legitimizes itself.

The best example I can think of where the Supreme Court has answered a political question rather than exercised judicial self-restraint was in Row vs. Wade (1973).  On a 7-2 decision, the Supreme Court extended the due process clause of the 14^th Amendment and essentially created the policy of states needing to tie the legality of abortion to a particular trimester of the pregnancy.  In this case, I believe the Court had no other alternative other than to not hear the case.  Even then, however, they could have been criticized because the case was certainly ripe and the fury over the legality of abortion was one that fired up practically all Americans.  It is not the job of the Court to decide how and when an act would be made illegal; it’s the job to determine if a law on the books is constitutional or if it infringes upon the right(s) of an American(s), and today even some non-Americans.

I think often times the Supreme Court has the toughest job in all of Government; basically having to confirm or toss out a law that’s been passed and signed into law either through careful and lengthy negotiations or even through a hasty “pass it so we can see what’s in it” method.  It’s not within the bounds of the constitution for the Supreme Court to pass law, create policy or advocate from the bench.  They also have a responsibility to answer the main question of law at hand thoroughly and completely; to avoid doing so simply kicks the can down the road for the next session(s) of the Court.  In order to act responsibly and fulfill their functions of government, judges and justices much practice judicial self-restraint to ensure they’re not stepping out of bounds, either on purpose or being forced to do so, such as they were with National Federation of Independent Business vs. Sebelius (2012).   They are judges, not legislators.  It’s important they remain impartial and only rule when they must.  That’s how they preserve their legitimacy and credibility.