The New Republic
Judicial restraint—the view that judges should take special pains to save democratically enacted laws from unconstitutionality and invalidate them sparingly—has hit hard times. As a distinctive approach to constitutional law, judicial restraint enjoyed prominence in the late nineteenth-century writings of James Bradley Thayer, who once said that judges should wield their constitutional swords only to slay “monstrous” laws. In the first half of the twentieth century, judicial restraint attracted just a few scattered admirers—Justice Felix Frankfurter here, Alexander Bickel there. The latest sign that judicial restraint is dying off is the baffled reception for the Supreme Court’s recent health care decision in legal circles.
The Court saved the law from unconstitutionality on the basis of Congress’s taxing power in an opinion laden with the deferential language of restraint: “every reasonable construction must be resorted to,” any “fairly possible” interpretation must be accepted. But the ravening legal commentariat was generally perplexed, failing to recognize the Court’s judicial restraint for what it was. The Right speedily dismissed the opinion as politically craven, while the otherwise jubilant Left prickled at perceived insincerities and manipulations. From the get-go, the hunt was on for alternative explanations for the Court’s reasoning—strategic cunning, corrupt capitulation to improper forces; anything other than a hopelessly old-fashioned exercise of jurisprudential modesty.
What is killing judicial restraint? In J. Harvie Wilkinson’s view, constitutional theory is doing the job. Wilkinson is a longtime judge on the U.S. Court of Appeals for the Fourth Circuit, a prolific writer, and a well-regarded and moderate conservative. As he writes in his new book, the fall of judicial restraint (and the subsequent transfer of considerable power from the people to the judiciary) came with the mid-twentieth century rise of theories of constitutional interpretation. The presumption shifted: judges should no longer defer to legislative enactments; they should use constitutional theory to resolve constitutional conflict.