Judicial Restraint in America

reviewed by Ben Pesta

"When I use a word," Lewis Carroll's Humpty Dumpty said, "it means just what I choose it to mean--neither more nor less."

"Judicial restraint" is a Dumptyesque legal term that has meant different things in different contexts. For UC Hastings law professor Evan Tsen Lee, it means "the notion that federal courts must avoid deciding challenges to majoritarian action whenever possible." Lee's Judicial Restraint in America is a concise history of how the federal judiciary--chiefly the U.S. Supreme Court--avoids doing what it is paid to do, i.e., render judgment.

In the late 19th century, federal judges were usually Brahmins from Boston and points west (but not very far west), and they were an activist lot. Their judicial activism usually consisted of reviewing and invalidating states' progressive legislation on the grounds that it was "paternalistic," and violated someone's property rights.

Oliver Wendell Holmes, himself a Boston Brahmin, was the first Supreme Court justice to become associated with the doctrine of judicial restraint. This association resulted from his 1905 dissent in Lochner v. New York, in which the Court, by a 5-4 vote, invalidated a New York law establishing a 10-hour workday and a 60-hour workweek for bakery employees. "This case is decided upon an economic theory which a large part of the country does not entertain," Holmes wrote, referring to Herbert Spencer's Social Statics, which posited a social Darwinist argument eight years before On the Origin of Species was published. "I strongly believe that my agreement or disagreement [with the theory] has nothing to do with the right of a majority to embody their opinions in law." He observed that the Court had declined to strike down state laws mandating vaccinations, prohibiting the sale of stocks on margin, and requiring that children be sent to school, all of which interfered with individual liberty to some degree.

Judicial review, judicial restraint's opposite, is clearly an antimajoritarian practice. It is difficult to argue that judicial review of legislation is essential to the maintenance of American liberty. England seems to have gotten along without it since 1610, when Chief Justice Coke asserted the supremacy of common law over acts of Parliament in his dictum in Dr. Bonham's Case. Generally, though, English courts have left acts of Parliament unchallenged, and tyranny has not resulted.

The problem is that the application of judicial restraint technically leaves in place such repugnant legislation as fugitive slave laws (see Dred Scott v. Sandford) and state sedition laws (see Gilbert v. Minnesota) on the dubious grounds that a majority of elected representatives voted for them.

Throughout the Supreme Court's history, its members have often applied judicial restraint with an eye toward achieving particular results. As often as not, it has meant "the notion that federal courts must avoid deciding challenges to majoritarian actions with which a particular justice agrees." Justice Holmes himself was less an ideologue than a "jobbist" (i.e, "Let's get the case decided"). But his nonideological approach was not shared by all justices, nor is it today. Judicial Restraint in America will make the reader nostalgic for the days when the doctrine's chief advocates were Holmes and Felix Frankfurter, rather than Justices Roberts, Scalia, and Thomas.

Ben Pesta is a white-collar and criminal defense attorney in Century City.

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