THE LOST HISTORY OF JUDICIAL RESTRAINT.

• Date: 01 November 2024
• Author: Webb, Derek A.

For over 125 years, jurists and scholars who have championed judicial restraint have looked back to James Bradley Thayer's 1893 Harvard Law Review article, The Origin and Scope of the American Doctrine of Constitutional Law, as the seminal authority for the rule that courts should presume the constitutionality of a challenged law and only invalidate it if its unconstitutionality is "clear" and "beyond a reasonable doubt. " But Thayer presented those three rules (presumption of constitutionality, clear error rule, and reasonable doubt standard) as rooted in historical legal practice in America. And yet none of his twentieth or twenty-first century acolytes systematically checked to determine the accuracy of his historical account or discover whether those rules really did become widely accepted and deeply rooted in American legal practice, mostly relying instead upon Thayer's say-so. Meanwhile, some prominent historians have disputed his account of the history, and many leading originalists have disputed different elements of Thayer's thesis, some disagreeing with the presumption of constitutionality, others the clear error rule, and still others the reasonable doubt standard.

My thesis is that over the course of America's first century, there emerged a much broader and richer historical consensus around judicial restraint than the advocates or critics of restraint have ever acknowledged. Indeed, I aim to show that by Thayer's time, the presumption of constitutionality, clear error rule, and reasonable doubt standard had become a widely accepted (if not always practiced), liquidated understanding of the meaning of the judicial power. From its earliest origins in the transatlantic constitution, and through piecemeal legal practice in state and federal courts, before and after the creation of the Constitution, the "Thayerian" "rules of administration" associated with judicial restraint were eventually adopted by both the U.S. Supreme Court and all fifty state supreme courts in the country.

Through a systematic exploration of two kinds of sources--over forty nineteenth- century legal treatises, dictionaries, encyclopedias, constitutional law casebooks, and manuals of federal practice, on the one hand, and decisions of the U.S. Supreme Court and hundreds of decisions by state supreme courts from 1780 to 1900 on the other--I attempt to not only demonstrate the fact of that broad consensus in the late nineteenth century, but show how that consensus and its underlying rationale developed from the American Founding to just after the Civil War. I show that two decisions in particular--the Dred Scott decision in 1857 and the Civil Rights Cases in 1883--had a strong impact upon both treatise writers and state supreme courts in the direction of greater judicial restraint, especially the acceptance of the reasonable doubt standard.

This has implications not only for legal history but for understanding the scope of the judicial power and duty today. By attempting to recapture this mostly lost history of judicial restraint, I argue that during America's first century, through the "discussions" in legal treatises and the "adjudications" in all the country's apex courts, all pointing overwhelmingly and uniformly in the direction of restraint, the Constitution's standard of review, though "more or less obscure and equivocal" in 1787, appears to have been fixed or "liquidated" by the end of the nineteenth century.

I. INTRODUCTION: AFTER JAMES BRADLEY THAYER--CYCLES OF JUDICIAL RESTRAINT
                II. BEFORE JAMES BRADLEY THAYER: THE ORIGINS, SCOPE, AND DEVELOPMENT OF JUDICIAL RESTRAINT, 1780-1900 A. 1780-1800: Tentative Beginnings--Judicial Restraint Before Marbury B. 1800-1840: An Emerging Yet Often Overlooked Rule--Judicial Restraint in the Marshall Court Era C. 1840-1860: The Clear Error Rule Becomes the "Leading Rule" Amid Concerns About an "Aggressor Court" D. 1860-1870: Thomas Cooley and the Rise of the "Reasonable Doubt" Standard in the Shadow of Dred Scott E. 1870s: The Two Wings of Judicial Duty--Engagement in Cases of Clear Error, Forbearance in Cases of Doubt F. 1880-1900: The "Leading Rule" Moves into Dissent 1. Widespread Consensus in Treatises 2. The Leading Rule Moves into Dissent at the Supreme Court: Frederick Douglass, John Marshall Harlan and Howell Jackson
                III. CONCLUSION: BEYOND JAMES BRADLEY THAYER--LIQUIDATING JUDICIAL RESTRAINT IN NINETEENTH-CENTURY AMERICA
                

I. INTRODUCTION: AFTER JAMES BRADLEY THAYER--CYCLES OF JUDICIAL RESTRAINT

After three of the most recent and momentous terms in Supreme Court history, in which the Court overruled Roe v. Wade and Planned Parenthood v. Casey in the 2021 Term, ruled that affirmative action in the context of admissions in higher education violates the Equal Protection Clause of the Constitution in the 2022 Term, and reversed Chevron deference in the 2023 Term, the concept of judicial restraint has taken center stage in the rival opinions of the Court and among scholars, court watchers, and the wider public.

In the Dobbs decision, Chief justice Roberts wrote in his solo concurrence explaining why he did not join the Court in its opinion overruling Roe v. Wade and Planned Parenthood v. Casey that "[i]f it is not necessary to decide more to dispose of a case, then it is necessary not to decide more." (1) And Justice Kagan invoked this principle in several speeches as well. Justice Kagan called it a central ingredient in what it means for a court to "act[] like a court." (2) But neither Chief Justice Roberts nor Justice Kagan anchored this aphoristic phrase in much legal or historic authority itself. Chief Justice Roberts called it "a simple yet fundamental principle of judicial restraint," (3) but provided no citation for the rule. Justice Kagan offered a little more historic support by attributing this phrase to judge Friendly, (4) who served on the United States Court of Appeals for the Second Circuit from 1959 to 1986, and for whom the Chief Justice himself had once clerked. (5)

In the 2022 Term, the justices again found themselves sparring intensely over the proper role of the judiciary and the meaning of judicial restraint. In her dissent in the affirmative action case, justice Sotomayor wrote that the Court was "not acting as a court of law" and "betray[ed] an unrestrained disregard for precedent." (6) "Today," she said, "the proclivities of individuals rule." (7) And in her dissent from Biden v. Nebraska, the student loan case, justice Kagan said, "[T]he Court forgets its proper role. The Court acts as though it is an arbiter of political and policy disputes, rather than of cases and controversies." (8) And she argued that "[f]rom the first page to the last, today's opinion departs from the demands of judicial restraint." (9) Noting this trending focus on the subject, Chief Justice Roberts observed that " [i]t has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary." (10)

The proper role of the judiciary--and the relative importance of judicial restraint--has indeed become a central feature of intense debates today among not only the Supreme Court's sparring Justices, but legal scholars, journalists, pundits, politicians, and ordinary citizens.

In this Article, I propose to take a step back from the contemporary debates, centered as they understandably are on the most recent changes and developments at the Supreme Court, to ask the more basic question of how the concept of "judicial restraint" was first introduced into American legal thinking, and how it developed over time.

I focus here on just one discrete yet fundamental dimension of judicial restraint--the standard of review for constitutional cases. The proper standard of review for constitutional cases is as foundational a question of constitutional law as there can be. It defines what amount of evidence is required in court to convince a judge to set aside a law for contravening the higher law of the Constitution. And it is just as much "the law" as the underlying merits of any particular constitutional dispute. So, in resolving any given constitutional case, it is not enough for the court to sort out the semantic meaning of a disputed constitutional provision, or contested federal or state law, and render its judgment according to its best lights. It also has to apply--after full consideration of the facts and underlying legal claims--a certain disciplining evidentiary standard to that exercise. Applying this standard is at the heart of what makes judicial decisionmaking distinct from mere political judgments or philosophical debates. It is a disciplining rule that has traditionally helped "courts act like courts," and helped ensure that the political or ideological "proclivities" of judges did not rule the day.

And yet as law, indeed as fundamental an aspect of the judicial decisionmaking process as there can be, there has been relatively little systematic attention paid to its origins, scope, or development in America by legal historians. (11)

The most famous, influential, and yet often criticized attempt to understand the Constitution's standard of review was James Bradley Thayer's 1893 article The Origin and Scope of the American Doctrine of Constitutional Law. (12) Some scholars have called it "the most influential essay ever written on American constitutional law." (13) In that article, Thayer attempted to identify three interrelated rules bound up with the Constitution's standard of review: (1) the presumption of constitutionality, (2) the clear error rule, and (3) the reasonable doubt standard. According to these three rules, courts would presume the constitutionality of challenged laws; only set those laws aside when they clearly, plainly, or manifestly violated the Constitution; and require evidence of unconstitutionality that was beyond a reasonable doubt. In "doubtful" cases, judges...