Understanding the Limits of Power: Judicial Restraint in General Jurisdiction Court Systems

JurisdictionUnited States,Federal
CitationVol. 22 No. 02
Publication year1998



Understanding the Limits of Power: Judicial Restraint in General Jurisdiction Court Systems

Philip A. Talmadge(fn*)

The concept of separation of powers is inherent in both the United States and Washington State Constitutions, although neither document explicitly provides for it. A critical component of the separation of powers doctrine is a recognition by each government branch of its appropriate sphere of activity. Historically, courts have recognized the appropriate sphere of judicial activity by adopting various doctrines deferring exercise of the full judicial power. Scholars and courts usually refer to these deferring mechanisms as judicial restraint. The exercise of judicial restraint has not always been perfect, as befits the necessary tension between the constitutional branches of government inherent in the concept of "checks and balances."

But in recent years, for a variety of reasons, the appropriate roles of the three constitutional branches have become increasingly more difficult to define. In the judicial branch, judicial activists of both the left and the right have emerged; many judges see themselves as quasi-legislators with the right to speak out on all issues, possessing a broad charge to right all wrongs. Courts are tempted to avoid judicial restraint and resolve any and all controversies litigants may choose to present to the judicial system. In an era of populist criticism of government and general distrust of policymaking by statute or rule, this temptation is further reinforced for certain judges doctrinally oriented toward the individualized, nongeneral decisionmaking that the common law offers. The result of such judicial activism is untoward and inappropriate involvement by the courts in political questions and partisan conflicts. In effect, what has emerged too often is a cowboy judiciary riding roughshod over separation of powers in its zeal to save every damsel in distress and to right every wrong.

The resultant risk of the courts' unwillingness or inability to define the appropriate scope of judicial responsibility or to respect notions of judicial restraint is that citizens will view the courts as just another partisan branch of government. Courts will lose their station as impartial resolvers of conflict. To the extent the courts become more like the partisan branches of government and the aura of judicial impartiality disappears, the respect of the people for the courts, and thus the courts' authority, will erode.(fn1)

We see today some of the consequences of the judiciary's proceeding beyond its core functions. The executive and legislative branches have questioned the core functions of the judiciary, such as judicial review or sentencing in criminal cases, and attacked the independence of the judiciary: "Politicians have long blamed judges for forcing them to take unpopular actions . . . but many of those politicians had enough respect for the courts that they were careful not to take their criticism too far. Today, however, politicians criticize judges for the purpose of intimidating them and getting specific results."(fn2)

Features of such efforts threatening judicial independence include legislative attempts to curtail court jurisdiction, heaping on the courts additional responsibilities without providing the necessary resources, politicizing judicial selection, and withholding proper compensation. Escalating judicial campaign costs only make these problems worse for judges.

In this Article, I draw on my legislative and judicial background to focus both on the tendency of the courts to exceed their core constitutional role and the implications of such judicial activism. I contend that modern courts of general jurisdiction are too often embroiled in sociopolitical controversies best left to the political branches of government. Part I addresses the concept of judicial restraint in our constitutional system and the need to define the core powers of the judicial branch of government. Part II discusses principles of judicial restraint in the federal courts. Part III, using the example of Washington State where the judiciary enjoys broad jurisdiction typical of most state court systems,(fn3) analyzes judicial restraint principles in a general jurisdiction court system. Part IV examines several recent Washington cases exploring these principles. Finally, because courts must confine themselves to their appropriate sphere of action, in Part V I will propose a new, overarching principle of justiciability for courts of general jurisdiction, incorporating principles of judicial restraint.

I. Judicial Restraint and Legitimacy in Court Decisionmaking

A. The Core Functions of the Courts

The foremost reason for restraint by the judiciary, particularly in controversies with significant political overtones, is the separation of powers inherent in our political structure. Our American constitutional system envisions three distinct and competing branches of government providing "checks and balances" to the inaction or aggressive tendencies of the other branches. Additionally, this system assumes that each branch will give appropriate deference to another in matters constituting the core of the other branch's function. Thus, identification of the core functions of the judicial branch of government is the first step in this analysis.

The most significant court function is dispute resolution; courts are designed to resolve disputes so that the litigants do not resort to private remedies, including violence, to vindicate their interests. In this process, courts assign culpability for behaviors and offer redress to litigants adversely affected by the culpable conduct of others. On the civil side, private interests are generally at stake; on the criminal side, because of significant public ramifications of the conduct, the public interest is affected and the State acts as the litigant.

For centuries, Anglo-American courts, with their adversarial system, have functioned effectively, resolving litigants' disputes by determining culpability. The evidentiary hearing before either judge or jury, with its elaborately evolved rules of evidence, is a finely tuned instrument for deciding who did what to whom.(fn4)

But, while we may feel some high degree of confidence in our procedures for determining culpability, we must admit to decidedly less certainty when courts attempt to determine remedies. Consider, for example, the inherent imprecision of attempts to compensate with money for pain and suffering, a lost limb, emotional distress, or future lost profits. If determining appropriate remedies in cases involving the ordinary business of the courts is so fraught with difficulty, imagine how much more difficult it is for courts to fashion remedies for ongoing intractable political or social problems. For this reason, courts should exercise restraint in deciding such controversies.

The discussions of judicial restraint in earlier literature have focused on decisions generally without differentiating between assessing culpability and fashioning remedies.(fn5) It is in the area of remedies that the judicial process finds its greatest challenges. The courts are not readily capable of managing the resolution of large-scale political problems. Judges are ill-suited to the role of managers because the courts require deliberation and elaborate process before decisions can be made. The dictates of due process tend to be inconsistent with the typically more immediate operational needs of a business enterprise, a social services organization, or a school system. By its nature, the common law process is not the best means for establishing complex societal policies. What judges may consider is confined to the record developed in court through the testimony of witnesses, frequently experts retained by the parties. They cannot possibly broker the complete array of interests inherent in many issues.(fn6) While courts can be effective in deciding that a wrong has been committed or someone is culpable, they are less effective at fashioning remedies for major political or social controversies.

Another core function of the courts is vindication of individual interests against majoritarian impulses to tyranny.(fn7) Notwithstanding a policy of judicial restraint, this antimajoritarian policy remains a vital, core judicial function often at odds with the principle of limiting court access. Courts must enforce individual liberties and interests against collective needs. In fact, the power of the common law rests in its individualized decisionmaking and its "policy" or ability to create a "rule" based on individual sets of facts. Emblematic of this core function is the duty of Washington courts to safeguard the individual liberties articulated by Washington's constitutional framers in our constitution's Declaration of Rights.(fn8)

Dating back to early common law days, courts have also had as core functions the inherent power to administer court systems, to regulate advocates before the courts, to regulate judges themselves,(fn9) and to develop the common law. The courts in turn apply the law in a myriad of factual circumstances that even the wisest legislative or executive policymaker cannot fully anticipate. This role of "nurturing" the development of the law by common law decisionmaking...

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