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Chapter Fifteen. Activism and Self-Restraint

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The Judge in a Democracy
This chapter is in the book The Judge in a Democracy
1J. Daley, “Defining Judicial Restraint,” in Judicial Power, Democracy and LegalPositivism279 (T. Campbell and J. Goldsworthy eds., 2000); McWhinney, “TheGreat Debate: Activism and Self-Restrain and Current Dilemmas in JudicialPolicy-Making,” 33 N.Y.U. L. Rev.775 (1958); Mason, “Judicial Activism: Oldand New,” 55 V. L. Rev.385 (1969); John Agresto, The Supreme Court andConstitutional Democracy(1988); Wright, “The Judicial Right and the Rhetoricof Restraint: A Defense of Judicial Activism in an Age of Conservative Judges,” 14Hastings Const. L.Q. 487 (1987); Mahoney, “Judicial Activism and Judicial CHAPTER FIFTEENActivism and Self-RestraintDEFINITION OF THE TERMSThe Need for a DefinitionJudicial decisions are commonly characterized along the continuumof activism and self-restraint. Those who make these classificationsseldom define their terms. The result is chaos and misunderstandingconducive neither to debate nor to evaluation. For many, theseterms have become code words for criticism or praise: X is a goodjudge because he is activist; Y is a good judge because she exercisesself-restraint. But what do we mean by activism and self-restraint? Is one good and the other bad? The answer to this question seemsto vary depending on the period in which it is asked. At some pointsin time, judicial activism is viewed as a good thing, and at othertimes it is viewed negatively. The same is true of self-restraint. Whataccounts for variation in the way judicial activity is viewed? Unlesswe agree on what we mean by activism and self-restraint, our use ofthe terms is an exercise in empty slogans. These terms are unlikelyto go away. Jurists, politicians, and the public continue to use them,and we should therefore try to define and understand them, so thatwe may evaluate and critique them.174342_CH15 GGS.qxd 3/2/06 12:56 PM Page 263

1J. Daley, “Defining Judicial Restraint,” in Judicial Power, Democracy and LegalPositivism279 (T. Campbell and J. Goldsworthy eds., 2000); McWhinney, “TheGreat Debate: Activism and Self-Restrain and Current Dilemmas in JudicialPolicy-Making,” 33 N.Y.U. L. Rev.775 (1958); Mason, “Judicial Activism: Oldand New,” 55 V. L. Rev.385 (1969); John Agresto, The Supreme Court andConstitutional Democracy(1988); Wright, “The Judicial Right and the Rhetoricof Restraint: A Defense of Judicial Activism in an Age of Conservative Judges,” 14Hastings Const. L.Q. 487 (1987); Mahoney, “Judicial Activism and Judicial CHAPTER FIFTEENActivism and Self-RestraintDEFINITION OF THE TERMSThe Need for a DefinitionJudicial decisions are commonly characterized along the continuumof activism and self-restraint. Those who make these classificationsseldom define their terms. The result is chaos and misunderstandingconducive neither to debate nor to evaluation. For many, theseterms have become code words for criticism or praise: X is a goodjudge because he is activist; Y is a good judge because she exercisesself-restraint. But what do we mean by activism and self-restraint? Is one good and the other bad? The answer to this question seemsto vary depending on the period in which it is asked. At some pointsin time, judicial activism is viewed as a good thing, and at othertimes it is viewed negatively. The same is true of self-restraint. Whataccounts for variation in the way judicial activity is viewed? Unlesswe agree on what we mean by activism and self-restraint, our use ofthe terms is an exercise in empty slogans. These terms are unlikelyto go away. Jurists, politicians, and the public continue to use them,and we should therefore try to define and understand them, so thatwe may evaluate and critique them.174342_CH15 GGS.qxd 3/2/06 12:56 PM Page 263

Chapters in this book

  1. Frontmatter i
  2. Contents v
  3. Introduction ix
  4. Part One. The Role of the Judge
  5. Chapter One. Bridging the Gap between Law and Society 3
  6. Chapter Two. Protecting the Constitution and Democracy 20
  7. Part Two. The Means of Realizing the Judicial Role
  8. Chapter Three. Preconditions for Realizing the Judicial Role 101
  9. Chapter Four. The Meaning of Means 113
  10. Chapter Five. Interpretation 122
  11. Chapter Six. The Development of the Common Law 155
  12. Chapter Seven. Balancing and Weighing 164
  13. Chapter Eight. Non-Justiciability, or “Political Questions” 177
  14. Chapter Nine. Standing 190
  15. Chapter Ten. Comparative Law 197
  16. Chapter Eleven. The Judgment 205
  17. Part Three. The Relationship between the Court and the other Branches of the State
  18. Chapter Twelve. Tension among the Branches 215
  19. Chapter Thirteen. The Relationship between the Judiciary and the Legislature 226
  20. Chapter Fourteen. The Relationship between the Judiciary and the Executive 241
  21. Part Four. Evaluation of the Role of a Judge in a Democracy
  22. Chapter Fifteen. Activism and Self-Restraint 263
  23. Chapter Sixteen. The Judicial Role and the Problem of Terrorism 283
  24. Chapter Seventeen. The Role of the Judge: Theory, Practice, and the Future 306
  25. Index 317
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https://doi.org/10.1515/9781400827046.263

Chapters in this book

  1. Frontmatter i
  2. Contents v
  3. Introduction ix
  4. Part One. The Role of the Judge
  5. Chapter One. Bridging the Gap between Law and Society 3
  6. Chapter Two. Protecting the Constitution and Democracy 20
  7. Part Two. The Means of Realizing the Judicial Role
  8. Chapter Three. Preconditions for Realizing the Judicial Role 101
  9. Chapter Four. The Meaning of Means 113
  10. Chapter Five. Interpretation 122
  11. Chapter Six. The Development of the Common Law 155
  12. Chapter Seven. Balancing and Weighing 164
  13. Chapter Eight. Non-Justiciability, or “Political Questions” 177
  14. Chapter Nine. Standing 190
  15. Chapter Ten. Comparative Law 197
  16. Chapter Eleven. The Judgment 205
  17. Part Three. The Relationship between the Court and the other Branches of the State
  18. Chapter Twelve. Tension among the Branches 215
  19. Chapter Thirteen. The Relationship between the Judiciary and the Legislature 226
  20. Chapter Fourteen. The Relationship between the Judiciary and the Executive 241
  21. Part Four. Evaluation of the Role of a Judge in a Democracy
  22. Chapter Fifteen. Activism and Self-Restraint 263
  23. Chapter Sixteen. The Judicial Role and the Problem of Terrorism 283
  24. Chapter Seventeen. The Role of the Judge: Theory, Practice, and the Future 306
  25. Index 317
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