Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law. The definition of judicial activism and which specific decisions are activist, is a controversial political issue. The phrase is generally traced back to a comment by Thomas Jefferson, referring to the despotic behavior of Federalist federal judges, in particular, John Marshall. The question of judicial activism is closely related to constitutional interpretation, statutory construction and separation of powers.
Detractors of judicial activism argue that it usurps the power of elected branches of government or appointed agencies, damaging the rule of law and democracy. Defenders say that in many cases it is a legitimate form of judicial review and that interpretations of the law must change with the times.
Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional, though what counts as obviously unconstitutional is itself a matter of some debate.
In deciding questions of constitutional law, judicially-restrained jurists go to great lengths to defer to the legislature. Former Associate Justice Oliver Holmes Jr. is considered to be one of the first major advocates of the philosophy. Former Associate Justice Felix Frankfurter , a Democrat appointed by Franklin Roosevelt, is generally seen as the model of judicial restraint.
Judicially-restrained judges respect stare decisis, the principle of upholding established precedent handed down by past judges. When Chief Justice Rehnquist overturned some of the precedents of the Warren Court, Time magazine said he was not following the theory of judicial restraint. However, Rehnquist was also acknowledged as a more conservative advocate of the philosophy.
Felix Frankfurter
Former Associate Justice Felix Frankfurter, one of the first major advocates to advocate deferring to the legislature.