Activism in Disguise:
An Inquiry into the seditious motives of Judicial Restraint
In his esteemed paper Constitutional Cases, legal philosopher Richard Dworkin postulates a binary definition of judges’ decision making processes. In Dworkin’s paradigm a judge may utilize one of two mutually exclusive systems – as he calls “the programs of judicial activism and judicial restraint” (432). This essay primarily will focus on the latter of the two systemic legal manifestations. According to Dworkin, the program of judicial restraint “argues that courts should allow the decisions of other branches of government to stand, even when they offend the judges’ own sense of the principles required by the broad constitution doctrines” (432). Essentially, judicial restraint occurs when a judge passively deems a particular decision ‘out of his court’s jurisdiction’, effectively allowing that particular issue to be decided in a lower court, with the legislature, or at the will of the people. Such deference of power, in the case of judicial restraint, Dworkin claims is directly and systematically opposed to judicial activism, a process where judges actively and directly decide a particular case/issue based on their respective moral agendas. I am seeking to refine Dworkin’s misappropriated conception with a more nuanced one; judicial restraint is often a subversive, stealthy form of activism in disguise.
Before looking at specific case precedent where we clearly see judicial restraint as pushing a particular moral agenda, it is important to understand where Dworkin’s argument – which is not the focal point of his essay, merely his definition of judicial decision-making – comes from philosophically. When confronted with a case, regardless of the social/moral ...