Judicial Restraint

In violent times, you shouldn't have to sell your soul
In black and white, they really, really ought to know
--Tears for Fears

When seeking to justify his ruling that Obamacare was in fact a reflection of Congress's power to tax, Chief Justice Roberts made it a point to declare that it is not the Supreme Court's "job to protect the people from the consequences of their political choices."

Stated differently, the justice is saying, "The Court declares that this law is a tax, and Congress has authority to tax per the Constitution. If you don't like it, then take it up with Congress"--presumably via the voting booth.

A basis for Roberts' declaration is known as 'judicial restraint.' Judicial restraint is the idea that the Court should defer to the will of lawmakers whenever possible, and employ the Constitution to nullify legislation only in extreme cases. This is because lawmakers are directly accountable to voters who can reward or penalize legislative outcomes. SC justices, on the other hand, are not directly accountable to the people since they are appointed and tenured for life.

An early proponent of judicial restraint was Justice Oliver Wendell Holmes, who believed in "the right of the majority to put their opinions into law." Holmes once said that it was his job to help his fellow citizens go to Hell if they chose to do so via their elective choices.

Hopefully the Creator does not close the door to Hell behind Holmes the doorman...

Not surprisingly, Holmes became a favorite among Progressives. Any proponent of decoupling legal decisions from the Constitution will attract those seeking to advance their interests through political influence.

Judicial restraint possesses some features that seem attractive at first glance. Because judges usually defer to the will of lawmakers, then judicial opinions biased by personal interest seem less likely. Moreover, as Chief Justice Roberts suggested, bad law seems to be in the hands of the people, since they elect the lawmakers.

However, there are several problems with the idea of judicial restraint. If judges are prone to defer to the will of lawmakers, then the interpretive role of the judicial branch seems compromised. Over time, it would seem that lawmakers seeking to exploit judicial restraint would gradually push the limits of the law so that what was once extreme becomes middle of the road and prone to the bench's rubber stamp.

Rather than decreasing the possibility of interested judicial opinions, judicial restraint merely alters the expression of that interest. Judges may be motivated to express deference to laws under review because they have interests similar to, or rewarded by, a legislative body and/or its electorate. Judicial restraint provides cover for a judge's interests.

The real problems with judicial restraint lie in the argument that Chief Justice Roberts employs. If legislators enact 'bad' laws, and the SC defers to these bad laws, then the people's primary peaceful recourse is at the ballot box. But the window to express their displeasure is not immediate. It is every 2 to 6 years, depending on the office and where we are in the election cycle. A tremendous amount of 'bad' could occur in the meantime.

The more serious problem with the argument that bad law should be thrown back in the hands of the people is that, in a democratic election system, the 'people' represent the majority. If judges defer to laws enacted by majority rule, then they are not protecting the rights of minorities who opposed the law. In a positivist system such the one espoused by Justice Holmes above (i.e., the law IS the majority), then protecting the rights of minorities is a non-issue.

But in a system grounded in natural law as is our Constitution, then protection of the rights of the smallest of all minorities, the individual, is the crux of the matter.

Judicial restraint as invoked by Justice Roberts encourages mob rule, and compromises liberty.