Judicial Restraint and Activism

The federal judiciary is a branch of the federal government created under the U.S constitution and federal government laws. The primary role of the judiciary is to interpret the law, resolve disputes, and provide justice to citizens. The judiciary evaluates the constitutionality of federal statutes and settles other legal disputes (Mawar, 2018). Pre-existing norms and precedents are issued through legitimate procedures by the judiciary in resolving conflicts. Moreover, the judiciary is regarded as the watchdog of democracy and the keeper of the constitution. Therefore courts decide what transpired and what should be done about it. After the judiciary makes decisions, the executive branch enforces the decision. The appropriate role of the judiciary is to resolve disputes, apply the law, and decide the punishment for those who break the law.

The judges’ proper role provokes interest and opinion differences in a democratic society. Some people suggest excess judicial lawmaking that makes judges too powerful, threatening the rule of law and judicial independence. Although judges protect the rights and freedoms of the citizens, it is crucial to protect the people from a too powerful court. “Legislating from the bench” is frequently used to describe excessive powers bestowed on judges. The term ‘legislating from the bench’ describes a legal system with judges who interpret the law and those who create law for political agendas. When judges are too powerful, judicial decisions in whatever capacity lack a sense of fairness, justice, and the necessity of treating individuals in the system with respect. However, the proponents of ‘legislating from the bench do not consider the vague societal and political changes that appropriate the creation of the law.

Courts can become activists when judges allow their personal views to influence their legal decisions. Judicial activism is a ruling in the court that overlooks stipulated laws, legal precedents, and past constitutional interpretations. Judicial activism does not have a consistent normative value and allows the courts to go beyond the applicable law to consider the decision’s broader societal implication (Mawar, 2018). Activist judges are likely to discredit laws and policies as unconstitutional and void. Courts prevalently make activist decisions when there is a viable reason to doubt the majority’s judgment or fairness. Judicial activism can be prevented by assessing the constitutionality of laws and re-interpreting the elements of the constitution. Going beyond the applicable law to factor in societal implications in court decisions constitutes judicial activism.

In contrast, judicial restraint is a legal interpretation that pivots on the limited nature of courts’ and judges’ decisions. Judges are prohibited from enforcing their views in legal decisions and interpretation of the constitution but instead encouraged to maintain a status quo in their decisions. Therefore individual judge opinions that alter or expand the prevailing law refrain from judicial restraint. Restrained judges are unwilling to overturn the precedent and lower court decisions whenever possible (Mawar, 2018). Restrained judges lack the authority to decide as policymakers and do not act to influence social change but rather act within the constitutional limits.

Procedural restraint is promoted in the U.S federal courts using several doctrines, such as the doctrine of ripeness and the philosophy of mootness. On the one hand, the principle of ripeness requires the federal courts to rule over actual cases rather than controversies (Manzar, 2020). On the other hand, the doctrine of mootness requires that personal interest should be available during litigation to avoid deciding concluded disputes in which legal resolution will have no practical effect. Also, restraining judges ensure originalism interprets all statements in the constitution based on original understanding. Therefore, a court shows judicial restraint when it honors previous decisions and is limited by the constitution.

Liberals and conservatives have a differing stances on judicial activism. Conservatives advocate for restraint and denounce activism, whereas liberals uphold judicial activism and oppose restraint. According to conservative judges, all decisions ought to be made based on the constitution and precedent decisions since it is not up to judges to define law personally. Conservatives argue that activism usurps the authority of government branches and agencies created legislatively, disfiguring the rule of law and democracy. In the past, conservatives have referred to liberals as ‘politicians in a robe’ due to the belief that politics and self-interest influence activist decisions.

However, liberals have pointed out that conservative judges are more likely to overturn precedents and challenge established institutions of the government. First, conservatives can be against stare decisis by overruling standing precedents due to inconsistency with related decision, and legal changes since the past decision (Manzar, 2020). In some cases such as failing to enforce an Act of congress guided by the constitution is equally perceived as activism and restraint. Liberals argue that when conservatives fail to enforce an Act of congress regardless of constitutional grounds, it is activist since it limits government institutions established by the constitution.

In their defense, conservatives argue they are not activists by rather returning to an older precedent that the liberals had ignored. Conservatives support judicial restraint to avoid illegitimate usurpation of power by the judiciary (Balkin, 2019). Liberals, in response, argue that overturning precedents is a form of activism since binding constitutional actors are altered for good decisions. Conservatives contend that their decisions are based on original legal interpretation sources. They also debate that failing to enforce an Act of congress guided by the constitution is not activist since it follows the nature of existing law created by elected officials. Additionally, since precedents predict the judgment of courts, they are the law. Therefore, they find the answer in other precedents in determining whether a certain precedent is allowed. An older precedent is hence referred to when overturning precedents.

When conservatives and liberals engage in judicial activism, the concept of activism will be used by both sides to make constitutional decisions that positively influence society. The liberals will rule on lawsuits based on preferred outcomes regardless of what is stipulated in the law (Balkin, 2019). Moreover, liberals will empower legislated agencies in a way that will empower the rule of law. Liberals can refer to precedents, the constitution, and government facilities to make good decisions. Conservatives can engage in judicial activism when the law has failed to provide a balance on a legal matter. By engaging in judicial activism, the conservatives and liberals can cooperate in striking laws they feel are unjust. Court opinions on a particular case become the ultimate guiding standards for ruling other cases. However, there is a risk of limiting government functioning since conservatives and liberals can override existing laws. Engaging liberals and conservatives in activism will reinforce the judiciary’s power of review and make decisions that positively impact society.


Balkin, J. M. (2019). Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time. Tex. L. Rev., 98, 215.

Manzar, S. (2020). The Politics of Judicial Restraint: A Jurisprudential Analysis of the Fourteenth Amendment of the United States Constitution’s Due Process Clause. LUMS LJ, 7, 34.

Mawar, D. (2018). The Perils of Judicial Restraint: How Judicial Activism Can Help Evolve the International Court of Justice. Goettingen J. Int’l L., 9, 425.

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"Judicial Restraint and Activism." LawBirdie, 23 Oct. 2023, lawbirdie.com/judicial-restraint-and-activism/.


LawBirdie. (2023) 'Judicial Restraint and Activism'. 23 October.


LawBirdie. 2023. "Judicial Restraint and Activism." October 23, 2023. https://lawbirdie.com/judicial-restraint-and-activism/.

1. LawBirdie. "Judicial Restraint and Activism." October 23, 2023. https://lawbirdie.com/judicial-restraint-and-activism/.


LawBirdie. "Judicial Restraint and Activism." October 23, 2023. https://lawbirdie.com/judicial-restraint-and-activism/.