Table Of ContentPrincipled Judicial Restraint
DOI: 10.1057/9781137486967.0001
Also by Jerold Waltman
COPYING OTHER NATIONS’ POLICIES
DILEMMAS OF CHANGE IN BRITISH POLITICS (edited with Donley Studlar)
THE POLITICAL ORIGINS OF THE U.S. INCOME TAX
POLITICAL ECONOMY:Public Policies in the United States and Britain (edited with Donley
Studlar)
AMERICAN GOVERNMENT:Politics and Citizenship
THE POLITICAL ROLE OF LAW COURTS IN MODERN DEMOCRACIES (edited with
Kenneth Holland)
THE POLITICS OF THE MINIMUM WAGE
THE CASE FOR THE LIVING WAGE
MINIMUM WAGE POLICY IN GREAT BRITAIN AND THE UNITED STATES
RELIGIOUS FREE EXERCISE AND CONTEMPORARY AMERICAN POLITICS:The Saga
of the Religious LandUse and Institutionalized Persons Act of 2000
CONGRESS, THE SUPREME COURT, AND RELIGIOUS LIBERTY:The Case ofCiy of
Boerne v Flores
DOI: 10.1057/9781137486967.0001
Principled Judicial
Restraint: A Case
Against Activism
Jerold Waltman
DOI: 10.1057/9781137486967.0001
principled judicial restraint
Copyright © Jerold Waltman, 2015.
Softcover reprint of the hardcover 1st edition 2015 978-1-137-49065-0
All rights reserved.
First published 2015 by
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ISBN: 978-1-137-48696-7 PDF
ISBN: 978-1-349-69647-5
Library of Congress Cataloging-in-Publication Data is available from the
Library of Congress.
A catalogue record for this book is available from the British Library.
First edition: 2015
www.palgrave.com/pivot
DOI: 10.1057/9781137486967
Contents
Preface vi
1 Where We Are Now 1
2 How We Got Here, Part 1: From the
Old Activism to the Warren Court 20
3 How We Got Here, Part 2: The Rise of
Conservative Judicial Activism 39
4 A Constitutional Theory of Judicial
Restraint 57
5 Objections 83
6 Conclusion 100
Bibliography 106
Index 114
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Preface
I have long been of the opinion that the modern Supreme
Court has assumed too large a role in our political life.
Even so, when I was working on my book on the case
of City of Boerne v. Flores, I was stunned to come across
Justice Kennedy’s audacity in lecturing Congress about its
appropriate role. Holding that Congress had no authority
to pass the Religious Freedom Restoration Act, which
sought to reinstate the strict scrutiny test in free exercise
cases following a Supreme Court decision abandoning
it, his whole tenor was completely dismissive of congres-
sional judgment regarding the Constitution’s meaning.
He concluded by telling Congress, “Our national expe-
rience teaches that the Constitution is preserved best
when each part of the Government respects both the
Constitution and the proper actions and determinations
of the other branches.” Soon after, this book began to
gestate in my mind.
There is no shortage of pleas for judicial restraint. On
the Court itself, justices of all persuasions routinely call for
judicial restraint in given cases. The problem is that such
pleas ring hollow. They ring hollow because these same
justices cavalierly abandon restraint when they encounter
policies they do not like. Of course, to a degree this tainted
use of judicial restraint has characterized many justices in
the past. The difference today is how frequently it is done
and how blatant it is. The sad truth is that most contem-
porary justices argue for judicial restraint only when they
agree with what Congress, the president, or a state legisla-
ture has done. Or, sometimes, to be a bit more generous, a
vi DOI: 10.1057/9781137486967.0002
Preface vii
case arises about which they do not have strong feelings one way or the
other. This is what allows commentators to label the justices “liberals” or
“conservatives” in the narrow political sense of those terms and regularly
predict their votes. The scorecard does not come out this way 100 percent
of the time, of course, and there are nuances of difference between Justice
A’s liberalism or conservatism and that of Justice B. Nevertheless, the
voting patterns are so static that it seldom taxes anyone’s imagination to
explain the divisions. In short, judges’ admonitions for judicial restraint
are not principled.
Most observers’ arguments for judicial restraint take one of three
forms. The first stresses the capacity of the courts. Justices are not
experts in various policy areas and they therefore should not substitute
their policy preferences for those of legislators and executive officials.
The second emphasizes that if the Court meddles too much in matters
that should be left to the political branches it will stir up political antag-
onism and perhaps trigger retribution, ending up making the Court less
powerful, not more. Better to husband judicial authority for the really
important matters. The problem with the first is that it is based on purely
pragmatic considerations while the second is grounded exclusively in
strategic considerations. The third is the overworked recitation about
the Court’s non-majoritarian status, a valid point but one that carries
many qualifications. Whatever the validity of these three propositions,
none of them has steered the Court away from broad-based judicial
activism.
We need something that reaches even deeper, to constitutional
foundations. What is required is a normatively grounded constitutional
theory that will demand judicial restraint. Political partisanship may
so have engulfed the present-day Supreme Court that principled judi-
cial restraint is not possible. However, I simply refuse to believe that. I
cannot believe that political orientation has completely eclipsed—or
merged is perhaps a better term—with judicial and constitutional
philosophy. There is no shortage of constitutional theories these days.
But they are largely theories of constitutional interpretation. That is, they
take as their initial premise that the Supreme Court is the proper organ
to issue authoritative rulings on what the words of the Constitution
mean. They then erect a framework that would guide the justices (if they
would adopt it) in making the “proper” decisions. My position is that
what we stand in want of is a constitutional theory that reaches beyond
“interpretation.” We need a theory of constitutional government, not a
DOI: 10.1057/9781137486967.0002
viii Preface
set of prescriptions for the Court. Setting out such a theory is what I
have attempted here.
Chapter 1 develops a more in-depth look at where we are in contem-
porary constitutional jurisprudence. Chapters 2 and 3 examine how we
got here by surveying a number of cases and noting the ideas that under-
pinned them. Chapter 4 is the heart of the book, in which I propose a
combination of positive constitutionalism and an exhumation of James
B. Thayer’s rules of interpretation. In Chapter 5, I attempt to answer
some anticipated objections to my argument. Finally, Chapter 6 briefly
sums things up.
I have benefited from many sources of help and inspiration along the
way. My department chair, David Clinton, was instrumental in arranging
a half leave one semester while I did the necessary research. The librar-
ians at both the central and law school libraries at Baylor University
are unfailingly helpful, and always remain polite while doing so. Diane
Burkhardt of the University of Denver law library was more than gracious
in providing me an inviting work atmosphere while I visited there.
Several conversations with Louis Fisher about why we need to view
constitutional politics in a broader frame than Supreme Court decisions
were always stimulating. Scott Smith read and commented on parts of
the manuscript. Also, the students in my graduate seminars regularly
sharpened my ideas in a number of ways, even when they were not
aware of it. As always, Jenice Langston and Melanie Pirello performed
their usual magic with the computer.
Finally, thanks are due to my editor Brian O’Connor, who had
confidence in the project from the start and has skilfully guided it to
completion.
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1
Where We Are Now
Abstract:Two Supreme Court cases from June 2013Shelby
County v. Holder and Windsor v. United Statesaptly
illustrate what is wrong with the contemporary Court. Both
were decided by 5–4 votes, and both overturned important
pieces of federal legislation, the Voting Rights Act and
the Defense of Marriage Act, respectively. In both cases,
impassioned and logically coherent dissents argued for judicial
restraint, by Justice Ruth Bader Ginsburg in the first case
and by Justice Antonin Scalia in the second. But both justices
blatantly ignored the axioms from their dissents in the other
case. What is badly needed today is a constitutional theory
that will point toward consistent and principled judicial
restraint.
Waltman, Jerold.Principled Judicial Restraint: A Case
Against Activism. New York: Palgrave Macmillan, 2015.
doi: 10.1057/9781137486967.0003.
DOI: 10.1057/9781137486967.0003
