Judicial Restraint

This Article analyzes the jurisprudence of CJ Grunis, the President of the Supreme Court of Israel, in light of John Hart Ely's constitutional theory. In an earlier case, during CJ Barak's Presidency, Justice Grunis publicly endorsed Ely's constitutional theory—which has put him at odds with the previous two Presidents of the Court, CJs Barak and Beinisch. Against this backdrop, this Article examines whether (or to what extent) Ely's theory can explain Justice Grunis's decisions as President of the Court. The Article argues that Ely's theory provides a more promising focal-point for evaluating President Grunis's public-law decisions than simplistic characterization such as activism, restraint, conservatism or formalism.

The Article also argues that analyzing the jurisprudence of President Grunis in light of Ely's theory can contribute not only to understanding the President's decisions, but also to evaluating Ely's theory itself. In particular, the Article employs this analysis to shed light on two main debates about Ely's theory. First, on the question of the extent to which Ely's theory could cabin judicial discretion and provide guidance as to the type of cases in which judicial intervention will be justified; and second, on the question of the extent to which Ely's theory leads to different results in practice than competing constitutional theories, such as the approach of former President Barak. The Article also employs this analysis to contribute to the broader debate about the practical value of constitutional theory.

Note: the article is in Hebrew

The existence of judicial restraint and judicial activism is very debatable in the judicial world. However, to categorize justices as being either consistent in their decision or being biased on a case by case basis is an overgeneralization. While it is true that in many cases justices vote by party lines, the Supreme Court has also seen many cases in which the decisive vote was cast against party ideology. While consistency in decision-making is not always possible for a variety of reasons, it is also fair to assume that each justice votes in alignment with his or her conscience. This paper analyzes several cases connected to judicial restraint and judicial activism to demonstrate that a clear pattern in decision-making is impossible to determine, and that a correct evaluation can only be made on a case by case basis.

Tulisan ini menganalisis Putusan Mahkamah Konstitusi Nomor 46/PUU-XIV/2016 pada 14 Desember mengenai permohonan untuk memperluas delik-delik kesusilaan di dalam KUHP terkait dengan perzinaan (Pasal 284), pemerkosaan (Pasal 285), dan perbuatan cabul (Pasal 292). Dalam Putusan ini terdapat empat Hakim Konstitusi yang berbeda pendapat (dissenting opinions). Hal tersebut dapat terjadi karena di antara para Hakim menggunakan dua pendekatan berbeda, yakni "pembatasan yudisial" (judicial restraint) dan "aktivisme yudisial" (judicial activism).

This paper articulates an egalitarian conception of judicial humility and justifies its value on the grounds that it importantly advances the legal and political ideal of fraternity. This account of the content and value of the virtue of humility stands in sharp contrast with the dominant view of judicial humility as deference or judicial restraint. The paper concludes by discussing some ways in which the account of humility and of its value provided in the paper furthers our understanding of the judicial virtues and of the political implications of giving virtue a role in adjudication.

This article argues that a judge who is admirably "restrained" in the sense of "self-disciplined" will decide cases according to principle, but will not always construe rights narrowly. “Principle,” however, is not likely to be a helpful guide in the highly contextual business of designing institutional remedies. In such cases, a judge seeking to operate under a "rule of law" model of judicial restraint, should limit his or her own role in complex cases to institutional reforms likely to produce a stronger institutional dedication to legal compliance and hence, over time, fewer occasions for judicial supervision.

Aktivisme yudisial merupakan proses pengambilan putusan pengadilan melalui pendekatan berbeda. Pendekatan ini menurut Satyabrata melebihi filsafat hukum lama, karena dianggap lebih modern dan dekat dengan kehidupan riil masyarakat. Aktivisme yudisial juga dipahami sebagai dinamisme para hakim yang memegang kekuasaan kehakiman ketika membuat putusan tanpa melampaui batas-batas konstitusi (S.P. Sathe, 2002). Namun aktivisme yudisial ini justru menciptakan kontroversi di sebagian kalangan, sehingga perlu pembatasan ruang geraknya (judicial restraint). Artikel ini mengulas mengenai aktivisme yudisial dalam bingkai konstitusi di Indonesia.

From the examination of the recent case-law established by the Chilean Constitutional Court, I will make a brief critical analysis of its adjudication criteria on the review of criminal law. In the first part, I will discuss the standards of the Constitutional Court to evaluate the principle of legality in its aspect of lex stricta (I). In the second part, I will discuss the issue of judicial restraint in the legislative determination of the criminal policy (II). Finally, I will examine whether the Constitutional Court uses a constitutional test when controlling the punitive rule. Since the answer is negative, I will suggest applying a strict standard of review, based on the criteria used in comparative law, given the particularities of the punitive rules (III).

Conservatives and libertarians have been harsh critics of Justice Holmes, but Holmes was not the progressive that these critics make him out to be. Holmes’s jurisprudence lends itself to conservative and libertarian jurisprudence, in particular in the areas of federalism and judicial restraint. Holmes disdained the politics of the young socialists who adored him, and Richard Posner goes so far as to cast Holmes as a free market capitalist. A common mistake is to take Holmes’s deference to the mores and traditions of states and localities as evidence of his shared belief in those mores and traditions. Holmes did not have to agree with states and localities to say that federal judges and Supreme Court justices should not inject their worldview into the life of a local community with an opposing worldview. The pragmatist in Holmes disliked making decisions that were not rooted in lived experience or based on observable, concrete phenomena relating to commonplace interactions among regular people. Holmes also disliked any tendency to marry morality and law, since law, for him, was a set of rules reflecting the practical consequences arising out of everyday social relations. All labels for Holmes miss the mark. Holmes defies categorization, which is a lazy way of affixing a name to something to avoid considering the complexity and nuances and even contradictions inherent in that something. Although defying labels, Holmes does offer views that conservatives and libertarians ought to prize, not criticize.