Judicial Restraint and Its Genealogy

by Ramesh Ponnuru

In a recent issue of NR, Carson Holloway reviewed Damon Root’s recent book Overruled (which I have not read). Holloway took the book to be an able exposition of the case for a libertarian jurisprudence, but argued that conservatives should reject that jurisprudence. Over at Reason, Root reviews the review.

Root argues that judicial restraint, though many conservatives have championed it for decades, actually has progressive roots. I take it that this argument is meant to suggest that conservatives should be suspicious of the idea. Holloway counters that the idea of judicial restraint long predates the progressives, stretching back at least to the Founding itself.

Root makes three responses to Holloway. All of them are reasonable, but none of them, to my mind, is persuasive.

First, he disputes Holloway’s recruitment of Chief Justice John Marshall to his side of the argument. Holloway noted that in Fletcher v. Peck, Marshall had advocated judicial restraint. Root counters that Marshall wielded judicial power in a “robust” way. On this point, Root understates the conventional wisdom that Marshall aggressively expanded judicial power. But I think that conventional wisdom is mistaken, as Matthew Franck demonstrates in a chapter of this book. Root points out that Thomas Jefferson thought that Marshall was a twister of the law, but Jefferson was, well, wrong about a lot of things. And even if both Root and Jefferson rightly characterized Marshall’s jurisprudence, Holloway’s points would still stand: The idea of judicial restraint predates the progressives, and Marshall’s opinion in Fletcher v. Peck, and the failure of any justice to contradict the relevant part of it, is evidence for its lineage.

Second, Root recruits James Madison to his side of the argument:

James Madison, one of the primary architects of the original U.S. Constitution, argued in a 1789 speech to Congress that amending the Constitution to include a Bill of Rights would prompt the judiciary to serve as “the guardians of those rights.” In fact, Madison wrote, the judiciary “will be an impenetrable bulwark against every assumption of power in the legislative or executive.” Not exactly a roaring defense of judicial deference.

It’s worth noting, though, that the speech did not list the judicial enforcement of rights as the principal value of the Bill of Rights. Madison talks about the courts only after talking about how having a Bill of Rights would buttress those rights in public opinion. Akhil Amar has argued that the “bulwark” language was a reference to juries at least as much as it was to judicial review. And the very next words of Madison’s sentence are about how the “independent tribunals of justice” he is talking about would “resist every encroachment upon rights expressly stipulated” in the Bill of Rights. That “expressly stipulated” rules out a lot of freewheeling judicial decision-making. 

Third, Root cites Bob Dole for his historical argument. Speaking about the Robert Bork nomination in 1987, the former senator said that Bork did not invent the concept of judicial restraint, of which “one of the most eloquent advocates was Oliver Wendell Holmes.” But Dole, whatever his authority on this subject, wasn’t saying that the idea of judicial restraint originated with Holmes or the progressives. I don’t think Holloway ever denied that Holmes and progressives sometimes spoke in favor of judicial restraint, or that their work has influenced later conservatives. (For what it’s worth, I think that much of influence has been baleful.) He just said that the concept of judicial restraint goes back much further than to the progressive era, and he’s right.

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