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Judicial Restraint in a System of Judicial Review

By Jack M. Balkin

I'll have more to say about living constitutionalism in a later posting this week, but in the mean time, I wanted to offer a few remarks about Eric Posner's call for judicial restraint last week. Eric makes three suggestions in his critique. Eric's first point is that judges should engage in more judicial restraint. Eric's second point is that this is not only his view: there is a growing consensus of other constitutional theorists forming in favor of judicial restraint. Eric's third point is that constitutional theorists should recognize that judges don't pay attention to constitutional theory and don't care what constitutional theorists think.

Am I the only one who sees a potential problem here?

I have always been puzzled about generalized calls for judicial restraint within a system of judicial review. I quite understand opposition to judicial review in general; not every constitutional system gives judges the authority to strike down legislation (although judicial authority to limit executive action in the name of constitutional values rests on a somewhat different footing, namely the need to ensure that the executive respects the rule of law.). In most discussions in the American context, however, arguments for judicial restraint occur against the background of general acceptance of the practice of judicial review. And in this context, arguing for judicial restraint only makes sense against the background of particular substantive views about the Constitution.

If you think that the Constitution prohibits X, then striking down X is not a violation of the principle of judicial restraint; it's enforcing the law. If you think that the Constitution does not prohibit X, then the call for judicial restraint also makes perfect sense because it's also an argument for enforcing the law properly. However, if you say that you think X violates the Constitution but you don't think judges should strike it down or enjoin it, then you are saying you are willing to let certain violations go unremedied in law. This sits uneasily with rule of law notions about what judges are supposed to do. (I will describe a slightly different claim, the argument from under-enforced norms, in a moment).

As a result, arguments for "more judicial restraint" are often thinly disguised forms of arguments about what the Constitution substantively protects or does not protect. That is, you tend to argue for judicial restraint in cases where you think the challenged practice is constitutional and so you naturally invoke the principle of majority rule; you reject calls for judicial restraint where you think the practice is unconstitutional and therefore we must preserve constitutional values from depredation by mere politics.

There are, however, several other possible variations of the argument for judicial restraint. One variation is that you have strong views about what the Constitution protects, but you believe those views should only be enforced through statutory law or executive action. As noted previously, this is really an argument against judicial review.

A second variation is that you have strong views about what the Constitution protects, but you believe those views should only be enforced through statutory law or executive action because you think courts aren't very good at enforcing these particular kinds of rights. This is the argument for underenforced constitutional norms I mentioned earlier. It is an argument from judicial futility. It makes sense in many contexts, but the problem with the argument is that sometimes it may prove too much: the argument for judicial futility would seem to apply even if the rights in question were created by statute or administrative regulation.

The third variation is that you have strong views about what the Constitution protects, but you think that you should not express them openly or fully in judicial opinions because you might be wrong, and because whether you are right or wrong, your announcement might have certain bad consequences. This is an argument for prudence.

I am not sure which position Eric takes, but my suspicion is that it is a fourth position, which is that outside of securing basic norms of political competition, the Constitution should not be interpreted to prohibit much of anything at all. That is, Eric supports judicial restraint because his basic substantive view is that majorities should be able to solve most problems of governance.

Now nobody who can get appointed to the federal courts believes that courts should generally get out of the business of judicial review; almost everybody mainstream enough to get a job in the federal judiciary thinks that there plenty of things that courts should be able to declare unconstitutional. They differ on what those things should be because they have different substantive views about the Constitution. So they tend to argue for more judicial restraint in different areas of the law. Put another way, because judicial restraint is a claim made against the background of acceptance of judicial review, it tends to be tied closely to competing substantive views about the Constitution.

That does not mean that we won't have periods where courts exercise judicial review to a greater or lesser extent, given the cases that come before them (Or in the case of the Supreme Court, the cases they chose to hear, which I suspect tends to creates a selection bias toward increased judicial review and away from judicial restraint. I'd be interested in whether there is any empirical data supporting this hypothesis.). If we start to see more judicial restraint in the federal courts, I agree with Eric (or at least one position of Eric's) this will not be because judges have bought into the latest academic theories about good judging. Rather, it will be because this is consonant with changing substantive agendas, as happened with liberals for a time during and immediately following the New Deal. (Conservatives, meanwhile, took the opposite view, at least where economic regulation and federalism were concerned.)

Later on, conservatives in the 1960s, 1970s and 1980s supported judicial restraint because they didn't like the new rights-protecting decisions of the Warren and early Burger Courts. However, because these conservatives had largely made their piece with the New Deal, a general policy of judicial abstention was hospitable to their substantive views about the Constitution. So they preached judicial restraint, loud and long, and Felix Frankfurter and Oliver Wendell Holmes were their idols.

By the time conservatives gained control of the courts, a new generation didn't see why the earlier generation was making such a big deal about judicial restraint. For them the point was to use the power of the judiciary to promote correct substantive views about the Constitution in areas like affirmative action, environmental regulation, campaign finance and federalism. They seemed less committed to judicial restraint (and liberals correspondingly more committed) because of their substantive views about the Constitution and because of the sort of controversies that came up during this period. This should not be surprising if people tend to offer arguments for judicial restraint selectively with respect to particular substantive areas of the law, while ignoring these arguments when they wish to protect constitutional interests they believe are quite important.

The story for liberals, not surprisingly, is mostly reversed. It is no accident that the liberal legal academy starts talking about taking the Constitution away from the Courts after they recognize that the courts have largely been taken away from them. It is also no accident? but ironically appropriate? that the romance with popular constitutionalism among liberals begins when the most powerful social mobilizations of the past two decades had come from the right and not the left. The irony, of course, is that although popular constitutionalism was offered as a response to an increasingly conservative Court, the reason why the courts were conservative was precisely because of the forces of popular constitutionalism, which had produced a conservative constitutional culture and a more conservative judiciary that reflected it.

One last point about judicial restraint. People often talk as if a policy of judicial restraint was something wholly in the power of judges to put into place. I think this is incorrect. Because judges are the most salient actors in producing constitutional law it might look as if they are the major cause of more restraint or less. But if you expand the time frame, you will see the story is more complicated. Judges get appointed because of their likely substantive views about the Constitution, so the responsibility for judicial restraint in particular areas also depends on the appointments process, which responds to the vector sum of political forces in the country at a particular point in time. Elect more conservative Republicans, and you get more judicial activity in striking down (or limiting) environmental regulations, affirmative action plans, telecommunications regulations, regulations invoking the commerce power, civil rights laws, and so on, with more judicial restraint exercised outside of this set of cases. Elect more liberal Democrats, and you tend to get judicial review exercised more often in a different set of cases, with a corresponding sphere of judicial restraint.

In addition, we must pay attention not only to the demand side? the appointment of judges who are likely to follow certain philosophies, but also the supply side? the production of litigation that these judges will hear. Charles Epp and more recently Steven Teles have emphasized the importance of the litigation support system that brings certain types of cases before courts. The more cases that are brought in a systematic fashion before courts seeking rights protection, the more likely courts are to recognize and expand these rights, even when we account for the courts' ideological balance. Epp points out for, example, that even as the Supreme Court became more conservative in the 1970's it expanded protection of women's rights because it got a steady diet of sex equality cases brought by public interest groups, including most notably, cases brought by Ruth Bader Ginsburg and her allies. The Court did not decide all these cases in the way that public interest lawyers wanted, but the repeated promotion of sex equality cases in a concerted litigation strategy pushed the law in their direction.

During the 1990s and afterwards, Teles points out, a second generation of conservative public interest firms began bringing successful challenges before the courts which shaped the direction of constitutional law. What both the liberal public interest lawyers and the conservative public interest lawyers have in common is that both tried to raise legal claims that invoked the power of judicial review. Getting courts to intervene to protect rights (or limit federal power) often has a more concentrated effect on the law than getting courts to stay out of a particular area; the latter often produce effects that are far more diffuse and also far more difficult to measure. Moreover, closing down judicial review in an entire area tends to produce less opportunities for future shaping of the law through litigation, and this matters greatly when public interest groups seek continuing funding from their patrons. Thus, if public interest firms on the right or on the left want to create ripple effects in the legal system with a potential for lasting consequences, there appears to be an asymmetry between pushing for judicial restraint and pushing for judicial activism. As a result, public interest law firms whether liberal or conservative have generally tended to ask judges to be more active, not more restrained.

Given these supply side effects, the movement by conservative jurists away from judicial restraint is overdetermined. Conservatives gaining control over the federal courts plus the concerted strategies of conservative public interest lawyers were likely to produce increased judicial activism in a conservative direction. Conservatism today supports judicial restraint only fitfully; the rhetoric of the 1960s and 1970s hasn't always caught up with the reality.

Full post as published by Balkinization on March 24, 2008 (boomark / email).