What is the Difference Between Judicial Activism and Judicial Restraint?

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  • Written By: Jessica Ellis
  • Edited By: Bronwyn Harris
  • Last Modified Date: 17 September 2017
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"Judicial activism" and "judicial restraint" are two terms used to describe the philosophy and motivation behind some judicial decisions. Unfortunately, popular use of both terms has lead to considerable confusion over their actual meaning and proper application. At the most basic level, judicial activism refers to a theory of judgment that takes into account the spirit of the law and the changing times, while judicial restraint relies on a strict interpretation of the law and the importance of legal precedent.

In many cases, whether a specific judge or court can be termed “activist” or “restrained” involves a careful look back at the history of judgments. An activist judge, for instance, may have a pronounced history of overturning precedent and active legislation. Moreover, a pattern would likely emerge aligning political and ideological preferences with decisions. An activist judge may be either conservative or liberal in his or her views. One factor that may define an activist is an adherence to personal or political philosophies through judgment regardless of the law.

A judge or court that engages in a policy of judicial restraint, by contrast, may have a history of upholding laws as written, and adhering to precedent. The political makeup of a restraint-based court should have little effect on decisions, as the judges will likely be more concerned with strict adherence to existing law. Some experts also argue that decisions from a restraint-based court will have more agreement across the bench on decisions, since a strict interpretation of the law arguably allows little wiggle room for dissent.

As far as the philosophical differences go, judicial activism and judicial restraint are simply two different descriptions of legal rulings. Trouble and confusion about the meaning of these terms tend to begin when these philosophies are placed in a framework of good versus bad, moral versus immoral, or objective versus subjective positions. Judicial activism is also frequently, but incorrectly, associated with liberalism, while judicial restraint is also incorrectly interpreted as a conservative point of view. In fact, some decisions may be argued to be examples of conservative judicial activism, while others may be claimed to be examples of liberal judicial activism.

Judicial activism is sometimes referred to derisively as “legislating from the bench,” or usurping the legislative power granted to state and national legislatures by entering decisions that demand a change in policy. On the other hand, some of the landmark cases of the US Supreme Court, such as Brown v. Board of Education, ignored both precedent and state laws in declaring segregation of public schools illegal. While judicial restraint can be characterized as an oversimplified philosophy that permits unfair, but not unconstitutional, laws to exist because of precedent, it nonetheless helps keep a check on the potential power of the judicial branch, closely adhering to the belief that restricted power helps maintain freedom.


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Post 5

@Markerrag -- a lot of states have judges run with no party affiliation solely for the purpose of reinforcing the notion that the judicial branch should be above political bickering. That's a good thing. Voters who are paying attention can vote for the judge and not the party.

And those voters paying attention should be able to determine whether they are getting an activist judge or one who exercises restraint. They usually have their records to fall back on and their past decisions will define what philosophy they subscribe to in a hurry.

Post 4

@Logicfest -- that is a bit oversimplification, but largely right. However, it is not unheard of for conservatives to curb societal abuses by exercising a bit of activism to correct obvious wrongs. Still, those judges tend to subscribe to that theory as the last result and tend to look for precedent first to back up their views. If they can't find that precedent, they may assume an activist position and legislate from the bench.

What is a real shame is that these issues rarely come up in a lot of judicial races. It might be good for voters to know what kind of judges they are getting when they vote. In my state, judges don't even run as Democrats are Republicans anymore and are largely prohibited from discussing their approach to the law in any substantive way. That's too bad.

Post 3

Want to throw a bomb in the middle of a political debate? Just bring up judicial activism and judicial restraint and rabidly defend one view of the other.

I'm not sure I would claim that judicial activism is incorrectly defined as liberal while judicial restraint is incorrectly defined as conservative. There may be some liberal judges who subscribe to the doctrine of judicial restraint and conservative ones who advocate activism, but they are the exception rather than the rule.

In other words, judicial restraint tends to preserve the status quo whereas judicial activism is often the route taken by people who want to change things but can't get the votes.

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