Judicial Restraint and Judicial Activism

The approach judges take when deciding cases can have an enormous effect on the courts' role in American law, society, and history. A judge's judicial philosophy and ideologies affect how that judge interprets the law and can affect how that judge sees the role of the judiciary in shaping the law.

Originalism is a judicial philosophy focused on using original intent to interpret and apply the law. Original intent is how a judge believes the framers of the Constitution or the authors of an amendment or of a law meant for the document to be read. Originalism has been followed to different degrees in American judicial history. Originalism requires reading historical texts written around the same time that the legal text in question—Constitution, amendment, law, or other text—was written. It also involves taking into account events that inspired the document. Supporters of originalism believe that following the Constitution as envisioned by the framers will uphold the basic principles of American government. These principles include carefully restraining the power of government, maintaining the system of checks and balances, and ensuring that the process of making new laws or constitutional amendments moves very slowly. Judges who follow originalism want court decisions to be necessary and lasting.

Identifying original intent in regard to the Constitution is not easy. Notes and minutes from the Constitutional Convention are not overly detailed, and other primary sources are limited or political. These sources include the Federalist Papers, a series of 85 essays arguing in favor of ratifying the U.S. Constitution. Opponents of originalism frequently point out that authors of these texts could not predict the changes in American society. These include large population increases and the evolution of technology.

Related to originalism is textualism, a judicial philosophy that focuses narrowly on a reading of the text of the law at issue and does not try to determine the lawmakers' thinking. In this view, a judge does not try to interpret the writings of the Federalist Papers or the speeches of a bill's sponsors. What matters is what the final text says. Some legal analysts view Justice Neil Gorsuch, who joined the Supreme Court in 2017, as a textualist. In his first majority opinion, Henson v. Santander Consumer USA (2017), he wrote that legal rules placed on a debt collector apply only to third-party debt collection companies and not to a company to which the debt is due. He based the argument on the text of the law.

One approach to the law is called judicial restraint, which is the judicial philosophy reflecting a reluctance to declare laws and government actions unconstitutional or to overturn precedent set by earlier courts' decisions. Judges with this philosophy typically defer to the lawmaking power of the elected legislative and executive branches and, when prior court decisions on the same principle are involved, rely heavily on precedent. A hallmark of judicial restraint is not making decisions based on social issues of the day. Instead, judicial restraint dictated that judges only invalidate an action taken by government when it clearly violates the law or the Constitution.

On the other end of approaches to the law, judicial activism is the judicial philosophy reflecting a willingness to declare laws and government actions unconstitutional or to overturn precedent set by earlier courts' decisions. Judicial activists often follow a "living Constitution" approach. These justices consider the document a framework that is flexible and can be viewed in light of the different challenges posed by modern society and by changing social attitudes and beliefs. In this view the Constitution is often seen as a particularly important protection for those in the political minority whose rights those in the majority may be threatening.

The years when the Supreme Court was led by Chief Justice Earl Warren (1953–69) exemplify judicial activism. During Warren's tenure, the court issued the landmark, unanimous decision in Brown v. Board of Education of Topeka (1954). This ruling declared public school segregation unconstitutional. In later years the Warren Court issued several more milestone—and controversial—decisions. These related to search and seizure procedures, prayer at public institutions, police interrogations, an accused person's right to legal counsel, and congressional reapportionment. Chief Justice Warren viewed the Supreme Court as an instrument of social change based on a broad understanding of the individual's constitutional rights. Many Warren Court decisions reflected that view. Judicial activism does not necessarily mean more liberal policy positions, as exemplified by the Warren Court decisions. Some legal analysts argued that the court under Chief Justice William Rehnquist (1986–2005) demonstrated judicial activism for conservative policy positions.