When Was Judicial Self-Restraint

This Essay responds to Judge Posner’s Jorde Symposium Essay The Rise and Fall of Judicial Restraint by analyzing the question of when, if ever, has judicial self-restraint thrived in the federal courts. Its central aim is to shed historicizing light on the trajectory of judicial activism by imaginatively rifling through an array of canonical and somewhat-less-than-canonical empirical identification strategies. Two conclusions follow from the inquiry. First, I find that the available data on the historical trajectory of judicial restraint are surprisingly poor, and it is necessary to offer any judgment about the historical path of judicial activism with great caution. Second, although the empirical record is fragmentary, some common points emerge from the use of divergent methodologies. Specifically, I suggest that the temporal domain of judicial activism should be expanded further back into American history than generally assumed. It was in the immediate aftermath of the Civil War that judicial behavior changed in a consequential way. That postbellum period has largely dropped out of the study of judicial activism, but should receive more attention than it currently does.