JUDICIAL RESTRAINT—the view that judges should take special pains to save democratically enacted laws from unconstitutionality and invalidate them sparingly—has hit hard times. As a distinctive approach to constitutional law, judicial restraint enjoyed prominence in the late nineteenth-century writings of James Bradley Thayer, who once said that judges should wield their constitutional swords only to slay “monstrous” laws. In the first half of the twentieth century, judicial restraint attracted just a few scattered admirers—Justice Felix Frankfurter here, Alexander Bickel there. The latest sign that judicial restraint is dying off is the baffled reception for the Supreme Court’s recent health care decision in legal circles.
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