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This introductory chapter considers the constraints faced by Supreme Court justices. It begins by discussing the attitudinal model, which assumes that justices are “decision makers who always vote their unconstrained attitudes.” It then turns to three legal principles that might constrain justices: stare decisis, judicial restraint, and strict construction of the Constitution. Stare decisis is the doctrine that decisions should be consistent with past decisions. Judicial restraint implies that justices should defer to elected officials as much as possible within the bounds established by the Constitution. The remainder of the chapter deals with external constraints followed by an overview of the subsequent chapters.

This chapter focuses on Brandeis's most prominent protégé, Felix Frankfurter, who assumed his seat on the Supreme Court in 1939. It shows how Frankfurter's qualms about the vigorous use of judicial review were a product of deep professional indoctrination as well as political expediency.

Building on the theoretical model of Chapter 3, this chapter seeks to assess whether “law” affects judicial decisions independently of policy preferences. Numerous legal doctrines may shape judicial decision-making, including stare decisis, originalism, plain meaning, the promotion of democratic participation, and doctrines with regard to specific elements of the Constitution such as the Bill of Rights or the commerce clause. The chapter concentrates on three legal doctrines (stare decisis, strict interpretation of the Constitution, and judicial restraint) that are both prominent and clearly more likely to play a role in structuring decision-making on some cases than on others. These doctrines are not necessarily canons of jurisprudence that are universally shared; they are principles that are widely acknowledged in the legal world as appropriately influencing constitutional interpretation.

This chapter presents some concluding thoughts. This book has traced the origins of judicial restraint doctrine in the Supreme Court. The chapter recounts a certain body of academic literature because of its importance and because it provides an interesting narrative of its own. This literature concerns the reconciliation of judicial review and popular sovereignty.

Marbury v. Madison is widely regarded as the case that established judicial review in the United States. But it is also the case that established judicial restraint in the United States, and its author, Chief Justice John Marshall, accomplished both with a single stroke. His singular genius was to reject the separation of restraint from action. This chapter presents a brief profile of Marshall and then discusses his opinion on judicial review. It presents his two fundamental ideals. One is that separation of powers principles require that courts exercise the jurisdiction given to them, just as they forbid courts to exercise jurisdiction where it has not been given to them. Marshall's second fundamental ideal, ubi jus, ibi remedium, is closely related to the first. It too implicates the line between law and politics. If one demonstrated a violation of his rights, it is the court's obligation to supply a remedy; the court can not withhold a remedy on grounds that society would be better off if the wrong went unredressed. To withhold a remedy under such circumstances would be to act on policy, which is just politics by another name.

This chapter reviews a range of examples of judicial approaches to restraint based especially on institutional rationales in order to evaluate the decision-making of investment treaty arbitrators. It outlines four broad approaches to adjudicative restraint: abstention, general deference, general balancing, and in-built restraint. It also discusses other legal contexts for judicial restraint.

Constitutional theories such as originalism and living constitutionalism evolve to reflect the changing attitudes of partisans and legal intellectuals in political time. They also develop to reflect changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century. Because we are near the end of the Reagan regime, Democrats are invested in judicial restraint and Republicans in judicial engagement. The situation is closest to the one faced by Democrats in the 1930s. Democrats’ relative hostility to the courts will continue until Democrats once again gain control through partisan entrenchment. However, because the Trump administration has worked hard to stock the courts with as many young conservative jurists as possible, this change may take some time.

This chapter analyzes the implications of judicial dialogue for the mode of judicial reasoning in interpreting fundamental rights. In particular, it explores the comparative method and judicial self-restraint as mechanisms contributing to ECJ's authority-building. These mechanisms have been highly contested in the literature. First, the chapter articulates a normative justification of the comparative method for giving meaning to EU fundamental rights. In addition, it expands on how the ECJ should operationalize this method, eschewing lowest and highest standard approaches. The comparative method should be aimed at better understanding the values informing the meanings attributed to fundamental rights across the states. This inter-state comparison would help to strengthen common understandings, while fostering an in-depth appraisal of pervasive particularities. Thereafter, ECJ's deference to state courts allowing for diversity in rights interpretation are explored.

This chapter is concerned with the approach that should be adopted when the case before the courts is one in which a Convention right is engaged. It looks at the atmosphere of the case, and the policy or the institutional background against which the right is scrutinized and applied. Taking as an example the case of Mrs. Pretty, who suffered from a motor neurone disease with no hope of recovery, the first section looks at the separation of powers and the Human Rights Act. The second section examines when judges should act, looking at the lessons from the Strasbourg case law. The third section explores judicial restraint under the Human Rights Act. The fourth section looks at the engaging principle under the Human Rights Act.

This chapter focuses on Antonin Scalia. In 1983, as a young judge on the D.C. Circuit, Scalia published a law review article called “The Doctrine of Standing as an Essential Element of the Separation of Powers.” In it, he laid bare many of his beliefs about the relationship among the three branches of the federal government. Scalia's theory of standing doctrine—as protection against courts telling majorities how best to pursue their own interests—resonated the most deeply in the environmental cases, where it was obvious that all citizens were similarly vulnerable.

This chapter examines the performance of arbitrators in light of judicial approaches to restraint based on relative capacity. It shows that the arbitrators did not show restraint to governments based on rationales invoked by many courts. In cases where arbitrators engaged in abstention, deference, or balancing, these approaches to restraint were nearly always ring-fenced within a particular treaty standard. Even when the arbitrators invoked various terms that might signal restraint, it was more often to expand than to contain their authority.

The rise and fall of regimes shapes partisan attitudes about judicial review. How people feel about judicial activism and judicial restraint depends on where they are in political time, and which party tends to control the federal courts. The parties’ positions are mirror images. Over the course of a regime the dominant party increasingly relies on judicial review to achieve its goals, while the opposition party becomes increasingly skeptical of judicial review and advocates judicial restraint—although neither party ever fully abandons using judicial review to advance its policies. As the cycle moves from the beginning of a regime to its final days, the parties—and the legal intellectuals allied with them—gradually switch positions. The party of judicial restraint becomes the party of judicial engagement, and vice-versa. The effect, however, is generational; older people may stick with their hard-won lessons about the courts, while younger generations, who have very different experiences, take contrary positions.

This introductory chapter first sets out the book’s purpose, which is to examine how arbitrators make fundamental choices about how to constitute their role in relation to other decision-makers. This was carried out through a systematic study of, firstly, the types and areas of decision-making reviewed by the arbitrators, and, secondly, whether and how the arbitrators drew on approaches used commonly by courts to orient judicial review and, in some cases, show restraint. The chapter then discusses institutional rationales for judicial restraint; presents a theoretical overview of the arbitrators’ role; and summarizes the findings from the present study.

Constitutional rights and freedoms, limiting the exercise of legislative and executive power, are unlikely to be of much practical value unless they can be judicially enforced. Although the interpretation of such rights must be duly sensitive to the legitimate demands of the collective welfare, and reasonable governmental determination of the public interest, their requirements should normally be ascertained by independent judges, appropriately detached both from immediate administrative pressures and prevailing public opinion on any particular issue. It is sometimes alleged, however, that certain matters are inherently unsuited to adjudication, either because judicial determination would usurp the proper democratic process, or because judicial qualifications or adversarial legal procedures are inadequate or inappropriate to the task. This chapter discusses political questions and the limits of justiciability, constitutional convention and political principle, and adversarial adjudication and the merits of ‘judicial restraint’.

A distinction between public and private in substantive law is presented as similar to the institutional distinction between private- and public-law courts in its dependence on a satisfactory separation of powers. This chapter describes the contribution of the Conseil d'Etat's dynamic extension of its judicial role (in determining, inter alia, state liability and proportionality) to the entrenchment of the French institutional and substantive distinctions. It shows, in contrast, that the English separation of powers has not facilitated the entrenchment of an English substantive distinction, which is thus not in convergence with the French. Rather, it shows how it has contributed to continuing administrative immunities, judicial restraint in English public law, and general uncertainty about the judicial role in administrative disputes, evident in the doctrine of ultra vires, unease about justiciability, and related debate about distinguishing public and privatelaw.

Robert Edgar Megarry (1910–2006), a Fellow of the British Academy, had a career in the law unmatched in its distinction, breadth, and diversity. He not only achieved an outstanding reputation as a practising barrister and then, for nearly twenty years, as a High Court judge, but also made what has rightly been described as an ‘immeasurable’ contribution to the law as scholar, teacher, and author. Megarry was born in Croydon, the elder son of Robert Lindsay Megarry and Irene Clark. He entered Trinity Hall at Cambridge University in 1929. It was A. L. Goodhart, editor of the prestigious Law Quarterly Review since 1926 and latterly Professor of Jurisprudence at Oxford, who had been one of those who encouraged Megarry to seek call to the Bar. Writing and teaching were among the traditional ways in which newly called barristers supplemented earnings from meagre practices, and Megarry was exceptionally well qualified for both these activities. His attitude of judicial restraint is now often regarded as dated.

Constitutional authority in the United States is a consequence of complex interactions between elected officials, political activists, and unelected justices that more resembles the chaos of the local garage band than the precision of a Mozart symphony. Some version of judicial supremacy has historically been the dominant theory but less often the actual practice. Supreme Court decisions influence official constitutional practice on such matters as crime and punishment, but so the attitudes of the local prosecutor, the availability of defense lawyers, the sympathies of the local juries, and whether the most recent appointments to the federal bench were made by a president determined to appear tough on criminals. This end result is hardly the pristine vision found in most civics books but may reflect the rough balance between fundamental law and popular sovereignty that underlies a functioning constitutional democracy.