[October 27, 2005]

The Bush Administration and others use the term “strict construction” and “judicial restraint” together as if they were synonymous with conservative or Republican political beliefs. In fact, they are not even synonymous with one another.

There are several forms of “judicial activism” or “restraint”.

First, a judge can demonstrate “activism” or “restraint” in the way that decisions are crafted. In the case where a court, such as the U.S. Supreme Court, decides which cases it will accept: Does the court, in its formal opinion, address only the specific issue that prompted the court to hear the case in the first place? – or does the court address other issues that might be raised by the parties? Does a court address only the limited issue or issues necessary to determine the outcome? – or does the court also address other issues, in addition, or in the alternative? Does the court limit its discussion to the evidence and the issues in the record of the case before it? – or does the court attempt to make broad statements (often referred to as “dicta”) intended to guide other courts in different types of cases that may arise? This type of judicial activism or restraint has very little to do with “conservative” or “Republican” versus “liberal” or “Democratic” political philosophy. A “conservative judge” in this respect may be socially liberal, while a judge who has very Republican-oriented political beliefs may be an “activist” on the court.

Independently, a judge can demonstrate activism or restraint in terms of the effect that’s given to Congressional legislation. Does the court “strictly construe” the words that Congress or a State Legislature uses? – or does the court infuse its own ideas about social or economic policy? Again, this type of judicial activism or restraint has very little to do with whether a judge is politically “Democratic” or “Republican”, “liberal” or “conservative”. If the legislation in question is consumer-oriented, then a politically “conservative” judge might be inclined to ignore the text of the statute. This type of judicial activism is common in the area of pre-emption, particularly “implied pre-emption”, where Republican-minded judges who generally favor big business will generally rule that some Congressional policy prevents a State Court from holding a business accountable, even in cases where Congress has not specifically expressed an intent to “pre-empt” State Law; and even in cases where Congress has explicitly stated that the purpose of the legislation is to protect consumers; and, in fact, even in cases where Congress has specifically stated in the legislation that the rights of consumers under the common law should be preserved.

Finally, there is judicial activism or restraint in the interpretation of the Constitution. Generally, the pundits and politicians refer to “strict construction” of the Constitution as a form of political “conservatism” and “judicial restraint”. In many cases, this is true. But “strict construction” also carries a temporal connotation, referring not only to strict construction of the words that are used in the Constitution, but a construction that limits the intent and effect of constitutional provisions to the historical facts and circumstances under which they first arose. While this approach often produces results which are politically “Republican” or “conservative”, it is important to recognize that constitutional issues almost always involve a contest between the democratic will of the majority, acting through their elected representatives, and limitations on legislative (or sometimes executive or even judicial) power, in order to preserve more enduring principles and to protect the sovereign property rights, personal rights, freedoms, and interests of individuals. Therefore, whether one favors “judicial activism” or “conservatism” in this sense often depends on whether he or she happens to be in the majority.

Safely nestled in the majority, people and their politicians generally favor “strict construction” and “judicial restraint” because it will, more often than not, lead to the triumph of legislative will.

When, however, legislation is socially “liberal” or “Democratic”, a politically “conservative” or Republican-minded voter, or politician, will want an “activist” judge who is willing to nullify the legislation on constitutional grounds. We frequently see this in Article III decisions, where judges who are politically “conservative” or Republican-minded effectively invalidate legislation on the basis that there is no “standing” to enforce it. In these cases, politically “conservative” judges interpret the Constitution “liberally” in a form of what may be described as “judicial activism” [while all the time claiming that they are exercising “restraint”].

And, of course, because people are likely to be in the majority with respect to some issues, yet fall in the minority with respect to others, people (including judges) tend to favor “restraint” with respect to some issues, yet “activism” with respect to others.

This is not to say that valid Separation of Powers concerns do not support the dismissal of some suits brought by an ordinary citizen to challenge legislation or executive action or inaction by another branch of government.

Yet, when you hear a pundit or a politician on tv talking about “strict construction” or “judicial activism”, he or she likely doesn’t know, or doesn’t care, what he or she is talking about.