The Rise and Fall of Judicial Self-Restraint, 100 California Law Review

Translated from the Journal California Law Review 519 (2012)Richard A. Posner, The Rise and Fall of Judicial Self-Restraint, 100

Abstract

The following translation is completed according to the publication: Richard A. Posner, “The Rise and Fall of Judicial Self-Restraint”, 100California Law Review 519 (2012).Richard A. Posner is one of the most influential scholars who served as a federal appellate judge on the U.S Court of Appeals for the 7th Circuit. This article discusses the origins and characteristics of the doctrine of Judicial Self-Restraint. The author reviews James Bradley Thayer’s constitutional doctrine which argues that judges should overturn a legislative act only when there is no reasonable doubt that it is unconstitutional. According to Posner, Thayer’s doctrine was approved and utilized by great American jurists including Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter and Alexander Bickel in their judicial and academic writings.

The paper suggests that one of the major reasons for declining the prominence of Judicial SelfRestraint was the development of modern Constitutional Theories (like originalism, textualism, moral interpretations, etc.) stimulated by the conservative backlash against the Warren Court’s Judicial Activism. Subsequently, Judge Posner makes the case for Judicial Pragmatism which emphasizes the significance of consequences over doctrine by offering the eight principles of legal pragmatism. And the author argues that the most highly regarded jurists in American legal history have always been pragmatists.