chAPTeR TweLve • The JudIcIARy 287
John Roberts at his swearing-in ceremony
at the White House. Because of his relative youth, he
will remain chief justice for many years. How does
someone become chief justice? (Joe Raedle/Getty
Images)Judicial Restraint
A doctrine holding that
courts should defer to the
decisions made by the
elected representatives
of the people in the
legislative and executive
branches.Judicial Restraint. In contrast, the doctrine of judicial
restraint rests on the assumption that the courts should defer
to the decisions made by the legislative and executive branches,
because members of Congress and the president are elected by
the people, whereas members of the federal judiciary are not.
Because administrative agency personnel normally have more
expertise than the courts do in the areas regulated by the agen-
cies, the courts likewise should defer to agency rules and deci-
sions. In other words, under the doctrine of judicial restraint,
the courts should not thwart the implementation of legislative
acts and agency rules unless they are clearly unconstitutional.Political Implications. In the past, judicial activism was
often linked with liberalism, and judicial restraint with conser-
vatism. In fact, though, a conservative judge can be activist, just
as a liberal judge can be restraintist. In the 1950s and 1960s,
the Supreme Court was activist and liberal. Some observers
believe that the Rehnquist Court, with its conservative majority,
became increasingly activist over time.
After the election of Barack Obama as president in 2008,
some observers suggested that the Court’s conservative wing
became still more activist in its approach to judicial interpreta-
tion. The Citizens United v. Federal Election Commission deci-
sion, in which the Court struck down long-standing campaign
finance laws, lends credence to this view. Some believed that
the Court was stepping back from conservative judicial activism
when it upheld most of Obama’s health-care reform legisla-
tion in June 2012. Others, however, note that the Court also
blocked the attempt by Congress to force states to expand the
Medicaid program. This step was an innovation in limiting the
power of Congress.
Other terms that are often used to describe a justice’s phi-
losophy are strict construction and broad construction. Justices
who believe in strict construction look to the “letter of the law” when they attempt to
interpret the Constitution or a particular statute. Those who favor broad construction try
to determine the context and purpose of the law.Ideology and the Rehnquist court
William H. Rehnquist, who died in 2005, became the sixteenth chief justice of the Supreme
Court in 1986. He was known as a strong anchor of the Court’s conservative wing. The
Court’s rightward movement, which began shortly after Rehnquist became chief justice,
continued as other conservative appointments to the Court were made during the Reagan
and George H. W. Bush administrations.
Interestingly, some previously conservative justices showed a tendency to migrate to
a more liberal view of the law. Sandra Day O’Connor, the first female justice, gradually
shifted to the left on a number of issues, including abortion. Generally, O’Connor and
Justice Anthony Kennedy provided the “swing votes” on the Rehnquist Court.
Although the Court moved to the right during the Rehnquist era, it was closely
divided in many cases. Consider the Court’s rulings on states’ rights. In 1995, the Courtwww
Helpful Web Sites
Cornell University offers an
easily searchable index of
Supreme Court opinions,
including some important
historic decisions. Find it
by typing “cornell supct”
into your search engine.9781285436388_12_ch12_271-296.indd 287 10/29/13 11:01 AM
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