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Judicial Restraint and Shared Governance

An old idea in a different context.

December 6, 2021

One of the flaws of shared governance as usually practiced in higher education is that it only includes versions of two of the three branches of government. The legislative branch has its analogs in a college senate or similar body, and on a Board of Trustees. The executive branch has its analog in the administration. But there’s not really a judicial branch, at least for policy matters.

Of course, many people rush to fill the perceived vacuum of judgment by offering judgment in mass quantities. But that’s not the same thing.

At the national level, the judicial branch is supposed to ensure that power is wielded consistent with basic principles. Those principles sometimes crash into each other, and in difficult cases smart people who mean well can disagree about the best fit of principles to the case at hand.

In the 20th century, some thoughtful legal observers (and justices) noticed the apparent contradiction between representative democracy and unelected judges with lifetime tenure. They offered, as a compromise, that judges should be restrained in passing judgment on laws passed by duly elected representatives. The idea was that in gray areas, it’s probably best to defer to the elected branches and the electoral process; overrides of popular will should be reserved for relatively extreme or clear-cut cases. The term for that school of thought was “judicial restraint.”

Judicial restraint can benefit the left or the right, depending on the case. It’s about jurisdiction. The idea is that judges shouldn’t substitute their own policy preferences for the preferences expressed by duly elected representatives. As long as no fundamental rules were violated, this school of thought says, then the unelected branch should keep out of it. As a former boss of mine once put it, there’s a difference between “I wouldn’t have done it that way” and “what you did is malpractice.” In the former case, advocates of judicial restraint would counsel judges to keep their opinions to themselves. They can vote in elections like anyone else, but in issuing judicial opinions, they should stay in their lane.

As our politics have polarized, judicial restraint has gone out of fashion. It relies on a general consensus about the ground rules; to the extent that the consensus shrinks, arguments for judicial overrides in one direction or another multiply.

The classic critique of judicial restraint was that it enabled what Madison called the tyranny of the majority. American history offers plenty of examples of minority populations being treated unfairly by voting majorities; too much judicial restraint, in this view, leads to too little justice for the outnumbered. A more contemporary version of this critique points out that “majority” isn’t always the right term; often, a small group with disproportionate power can exert its will in destructive ways through a combination of wealth and a sort of gamesmanship. Pretending that the legislative branch is immune to such influences is both counterfactual and disingenuous. Deference to a distorted outcome isn’t respect for democracy; it’s surrender to those with the means to distort it.

I offer all of this as context for a good conversation I had last week with someone who wanted to know why I didn’t stop a curricular proposal to which they objected. My interlocutor offered several arguments on the relative merits of the proposal, some of which were quite compelling. In the face of such arguments, they asked, why was it allowed to go through?

My answer was a variation on judicial restraint. As a matter of principle, I don’t think a vice president for academic affairs should routinely substitute their judgment for that of the governance process as a whole. I saw the question as less about the merits of the given proposal and more about whether it was closer to “I wouldn’t have done it that way,” as opposed to malpractice. Respecting the process means living with decisions that, if it were solely up to you, you might have made differently. If I swooped in and unilaterally undid or changed the proposal, I believed, the harm done to the process would outweigh any good done in the particular case.

It’s an old argument, and one that’s out of fashion now. And it’s an awkward fit in the absence of an analog to the judicial branch. But at its base is a respect for the process of shared governance, independent of whether I agree with a particular decision.

I give my interlocutor credit for asking the question directly and honestly and engaging in a real conversation about it. Instead of defaulting to the rumor mill and innuendo, they decided to have an intelligent conversation about it. We talked like adults. It gave me hope.

Our national politics have shown that terrific institutions don’t guarantee thoughtful debate. But that doesn’t mean we should give up on thoughtful debate. Some old ideas still have some life left in them, even if the larger polity seems to have forgotten them.


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