You may have heard phrases like, “Judge Brown is an activist judge” or “Judge Collins strictly adheres to the plain text of the Constitution.” These phrases and buzz words are typically used when criticizing or praising a judge.

But, what is an “activist judge?” What is “judicial restraint?”

Before I begin, please keep in mind that this is a broad column dealing with the two philosophies. Also, these philosophies of interpreting law have been utilized by both liberal and conservative judges. While “judicial activism” is oftentimes linked with left wing judges, there are some conservatives who engage in the same behavior.

Judicial Activism interprets the Constitution from the perspective that the founding document is not “set in stone.” Rather, it should be viewed in conjunction with modern values and culture. By using this approach, judges can exercise power to correct what they personally perceive as a legal injustice without focusing on the plain text, meaning, or original intent of the Constitution as it was written and approved by all states in the 1700’s.

“Activist judges” can significantly upset the supposed co-equal three branches of government. The legislative branch is affected the most. For example, an activist judge may invalidate a law that Congress has created if he or she opposes the political reasons, ramifications, or consequences of the law.

Judicial Restraint holds the opposite view. It advocates that the courts uphold all acts and laws of Congress and legislatures unless they violate the United States Constitution.

This philosophy originated in the late 1700’s. As the Supreme Court of the United States (SCOTUS) was developing its independence as a co-equal branch, judicial restraint was the prevailing and logical judicial philosophy. As time passed, Courts utilizing judicial restraint began to adhere to the practice of stare decisis. This is when a question comes before the court involving a prior interpretation of the Constitution. The courts will generally defer to that prior interpretation unless that ruling was Constitutionally wrongly decided by a prior court. Additionally, judicial restraint prevents judges from allowing their personal views to interfere with their duty to interpret law.

Of the two philosophies, judicial restraint is the best approach for four primary reasons:

1. Purpose of the Document – The Constitution was not written as a basic guide, list of suggestions, or something that changes over time based on our culture. Its purpose was and is to provide the Supreme Law of the land. For example, while the Founders may not have specifically thought about cell phone searches, they were smarter than some people think. They provided sections of the Constitution, like the 4th Amendment, to address search and seizure issues like the cell phone and other future Constitutional questions.

2. Separation of Powers – As mentioned above, the federal government’s powers are divided among Congress, the president, and the judiciary. None is supposed to be superior to any other. Whenever a court rules a legislative act is beyond Congress’s inherent powers, it second-guesses a constitutional determination made by Congress and expands the Court’s power at Congress’s expense.

3. Consistency – When judges interject their own feelings into decisions, the case law becomes inconsistent. SCOTUS can only hear a handful of cases each year from jurisdictions that have conflicting opinions about the same or similar issue. Judicial restraint provides some rules for judges to adhere to. Rules provide more consistency. Since citizens are expected to abide by the law, it is helpful to know what the law is.

4. Amendment Process – While purposely difficult, there is a way to change the Constitution through the Amendment Process. This tool has significantly benefitted our nation in fixing many problems that were not addressed in the original Constitution such as all of the Bill of Rights, outlawing slavery, women’s suffrage, and the succession of power from the president to the vice-president.

For more information on these two judicial philosophies, please visit the Federalist Society at www.fed-soc.org.