Judicial Restraint in America How the Ageless Wisdom of the Federal Courts was Invented

Many legal scholars believe that judges should not be "activists." But exactly what does it mean for judges to practice "restraint," and how did that set of practices evolve in America? In Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts was Invented , Evan Tsen Lee traces the cultural, social, and intellectual forces that shaped the contours of judicial restraint from the time of John Marshall, through the "vested property rights" courts of the early 20th Century, through the Warren Court, and up to the present. The Supreme Court and the many lower federal courts have long used mystifying technical doctrines known as "standing" and "abstention" out of a professed fidelity to judicial restraint. Yet this book aims to demonstrate that the concept of judicial restraint cannot be meaningfully viewed outside of the varying contexts of American history. The notion of judicial restraint only makes sense in light of the waxing and waning American commitments to property rights and Protestant idealism, to scientific pragmatism, to racial equality, and even to environmental protection and the need to stem climate change. This book focuses on the personalities and lives of powerhouse Supreme Court justices - John Marshall, Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, William Brennan, and now Antonin Scalia. Largely written in narrative form, it will appeal to those interested in how politics, society, and the power of ideas have shaped American public law.

Evan Tsen Lee is Professor of Law at the University of California, Hastings. He received an A.B. in political science from the University of California, Berkeley, and a J.D. from Yale Law School. He served as a judicial clerk to the late William H. Orrick, Jr., United States District Judge in San Francisco. Since joining the faculty at UC Hastings, Professor Lee has published leading articles on Federal Courts law in the Harvard Law Review, the University of Pennsylvania Law Review, and the Supreme Court Review, the Vanderbilt Law Review, the Southern California Law Review, the Hastings Law Journal and other scholarly journals. He is one of four faculty members for the Federal Judicial Center's annual television program, The Supreme Court Term in Review, and he is a member of the American Law Institute. He has been named "Professor of the Year" five times by the students at the University of California, UC Hastings.