2011 Jorde Symposium

The Rise and Fall of Judicial Self-Restraint

10 Jun 2012 09:50pm Richard A. Posner 

Judicial self-restraint, once a rallying cry for judges and law professors, has fallen on evil days. It is rarely invoked or advocated. This Essay traces the rise and fall of its best-known variant—restraint in invalidating legislative action as unconstitutional—as advocated by the “School of Thayer,” consisting of James Bradley Thayer and the influential judges and law professors who claimed to be his followers. The Essay argues, among other things, that both the strength and the weakness of the School was an acknowledged absence of a theory of how to decide a constitutional case. The rise of constitutional theory created an unbearable tension between Thayer’s claim that judges should uphold a statute unless its invalidity was clear beyond doubt (as it would very rarely be), and constitutional theories that claimed to dispel doubt and yield certifiably right answers in all cases. 


Was There Ever Such a Thing as Judicial Self-Restraint

10 Jun 2012 09:48pm Lee Epstein & William M. Landes 

Richard Posner’s version of judicial self-restraint implies that individual Justices who embrace restraint would tend to uphold the constitutionality of a law even if it went against their preferences or ideology. Judge Posner suggests that this form of restraint once existed but no longer does. Using a dataset of cases that considered the constitutionality of federal laws, we explore whether, in line with Judge Posner’s hypothesis, the Court grew more activist (that is, more willing to strike laws) over the period between 1937 and 2009 and whether the ideological leanings of Justices, and not judicial self-restraint, better explain how they voted in cases challenging the constitutionality of federal laws. Our results answer the question we pose in the Essay’s title in the affirmative: there was such a thing as judicial self-restraint, but there no longer is, just as Judge Posner suggests. Justices appointed since the 1960s were and remain ideological in their approach to the constitutionality of federal laws. 




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