Judge Richard A. Posner of the U.S. Court of Appeals for the 7th Circuit delivered the annual Brennan Center Jorde Symposium lecture Tuesday evening at University of California Berkeley Law School. His topic was “The Rise and Fall of Judicial Self-Restraint.”Berkeley Law Professor Robert Cooter introduced Judge Posner to an overflow crowd of law students, faculty and former law clerks of Justice Brennan. Professor Cooter noted that in addition to being one of the nation’s best known judges and the author of countless books, law texts, articles and blogs, citation studies show Judge Posner to be one of the most prolific and influential of living American writers.
Judge Posner’s lecture began with a look back at the origins of the doctrine of judicial self-restraint and its adherents in the academy and judiciary. Judge Posner outlined the main tranches of the theory of judicial self-restraint and traced its history back to Harvard Law Professor James Bradley Thayer’s 1893 Harvard Law Review article, “The Origin and Scope of the American Doctrine of Constitutional Law” (7 Harvard Law Review 129 (1893)). Thayer reasoned that judges should overturn an act of a legislature only when there is no reasonable doubt that it is unconstitutional. Thayer’s work was admired and followed by Justices Holmes, Brandeis and Frankfurter, jurists that Judge Posner describes as “the pragmatists.” Judge Posner then described how the theory of self-restraint was utilized by each of these justices to serve their underlying judicial and political philosophies. Justice Brandeis, for example, a progressive sitting on a conservative bench at a time of social uneasiness and progressive legislation, advanced the theory to discourage the Court from acting against populist measures.
After nearly 100 years of prominence, why have judges wholly abandoned the theory?
Judge Posner cited three reasons: first, the rationale for the theory was likely laid on too weak a foundation. For example, Professor Thayer believed that if state legislators knew that their work would be given great deference by judges, they would act more responsibly in the first instance, passing only legislation that was certainly constitutional. 
But, Judge Posner pointed out, this was “just a guess” by Thayer, not based on a modern-style empirical study or other hard research, and similarly, judges who believed that activism might lead the public to question the role of the judiciary were also conjecturing. Second, the activist Warren Court, which invalidated numerous state statutes, fired up conservatives, who reacted by creating even more activist conservative courts from the 1980’s to the present. The third and increasingly significant development, however, has been the rise of academic theories of constitutional review (originalism, textualism, the living constitution, minimalism, moral interpretations, just to name a few). Judge Posner reasoned that regardless of which theory a judge adheres to, he begins with the certainty that there is a key and a correct answer and thus is not inclined to defer to the views of legislatures.
Judge Posner pointed out that though these theories of constitutional interpretation are new, there has been “total abandonment” by the judiciary to the view that one or another should prevail. Judge Posner then cited the example of Holmes’ lasting and influential dissent in Lochner, which was one page long because “there was no theory that had to be discredited on the one hand and then defended on his side.” He contrasted the Supreme Court’s 2008 decision in Heller (which overturned the District of Columbia’s ban on handguns): whereas Holmes’ would have said simply that cities should be allowed to make their own decisions about whether or not it was permissible to keep a loaded gun in a crime-ridden neighborhood, Justice Stevens, writing for the dissent, was compelled to send his law clerks to search for historical material to counter Justice Scalia’s historical material. Though Stevens’ historical material arguably trumps Scalia’s (Judge Posner speculated that eager clerks might even have searched for "letters in John Adams’ coffin"), Judge Posner said no one reads these long opinions and all that is remembered is that the history is muddy and disagreeable. Few have questioned whether the odd-ball collection of material, including crumbling pamphlets and dictionaries, should have been relevant to the decision in the first instance.
A unique feature of the Brennan Center Jorde Symposium is that prominent scholars provide commentary after the lecture.
Stanford Law School Dean Larry Kramer went first: one of the nation’s foremost constitutional lawyers and a legal historian, Dean Kramer outlined a historian’s view of the theory of judicial self-restraint as practiced by adherents of Jeffersonian popular constitutionalism (which called for great deference to the peoples’ view of the Constitution) and the Federalists (expert judges should decide what the Constitution means) but agreed with Judge Posner that theories Constitutional interpretation are a recent development, without an historical basis. Jeffersonian or Federalist, throughout the centuries there was no real disagreement among judges on how to make decisions: they relied on text, history, precedent and consequences. This was the accepted and open-ended process.
By the 1980’s, post Brown vs. the Board of Education, there was universal acceptance of the legitimacy of judicial review. At the same time, liberals and conservatives disagreed about the substantive decisions of the courts, and consequently began focusing the debate sharply on the process by which decisions are made, leading to the development of competing academic theories of constitutional interpretation. But Dean Kramer also noted that both sides still adhere to the doctrine of judicial restraint when it serves their ends: for examples, conservatives believe judges should be restrained in entitlement and civil rights cases, liberals tend to think judges should be restrained in economic matters.
Professor Pamela Karlan 
argued that judicial restraint is alive and well: several types of cases are especially subject to great deference by federal judges, such as rationality review in executive privilege claims, habeas review of death penalty appeals and Section 1983 challenges. Yet in other areas, the concept of judicial review is so pervasive that we now observe instances of politicians supporting politically popular laws knowing they are unconstitutional and that the courts will likely strike them down. “Take Senator Spector, please,” she joked. Professor Karlan described Senator Spector’s support of a bill adverse to the rights of Guantanamo detainees. Shortly after the bill’s passage, the Senator filed an amicus brief challenging the law and describing it as “anathema to Constitutional liberty.” She cited immigration laws as especially vulnerable to this kind of manipulation.
Professor Karlan reasoned that the concept of judicial review is so pervasive that courts may now feel they have no capacity to be restrained. She sympathized with judges who are inclined to judicial self-restraint but, because of pressure to intervene, strain for rationales to uphold odious state legislation. She pointed to the tortured logic of a recent New York Court of Appeals decision to restrict marriage to heterosexual couples. A bill allowing same-sex marriage failed in the New York legislature in 2008.
This short summary cannot do justice to a great evening of discussion and debate. Judge Posner’s lecture and the commentaries by Professor Karlan and Dean Kramer will be published in an upcoming issue of the California Law Review. Part II of the Brennan Center Jorde Symposium will take place in April 2011 at the University of Chicago Law School.
For more information on this Jorde Symposium, click here.
Please watch the recording of the lecture here.