CONSTRAINT vs DEFERENCE:  Two possible meanings of “judicial restraint”

On Saturday, I criticized Jeb Bush’s stated criteria for choosing judges as what has led to continued disappointment by conservatives in Republican nominated justices. He said: “You focus on people to be Supreme Court justices who have a proven record of judicial restraint.” But what does “judicial restraint” mean?  There are two quite different possibilities:

  1. Constraint: “Judicial restraint” could refer to confining oneself to following the meaning of the text of the Constitution (and of statutes) — by which is meant its original meaning — whether this leads to upholding or invalidating properly enacted statutes; or
  2. Deference: “Judicial restraint” could refer to deferring to the will of the majority as reflected in the acts of the more “democratic” branches — i.e. “unelected unaccountable” judges should avoid wherever possible thwarting the will of the people, by which is meant the political preferences of the majority of the electorate. The emphasis here is not on the correctness of constitutional analysis, but on judicial deference to majority will.

What is of utmost importance is that these are not the same thing. . . .

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