Document Type

Article

Publication Date

2026

Abstract

For decades, jurists and scholars have touted the virtues of judicial restraint—a characteristic of judges who only adjudicate issues they are competent to resolve, thereby avoiding political thickets and preserving their authority. Judicial restraint is ingrained in justiciability doctrines that emanate from Article III of the Constitution. When applied evenhandedly, standing requirements, the political question doctrine, and prudential manageability prerequisites to litigation help the Court maintain an appropriately restrained docket.

The Roberts Court falls well short of this restrained ideal in potentially dangerous and destructive ways. The Court has changed justiciability doctrines into “activist judicial restraints” that, rather than avoiding unnecessary controversy, actively insert the judiciary into political debates and policy decisions. As this Article demonstrates with both a theoretical discussion and an empirical investigation, activism permeates the Roberts Court’s justiciability decisions. An examination of several high-profile cases shows how the Justices have turned justiciability doctrine into faux restraints and used them to provide dissembling cover for activism. An empirical analysis of all justiciability cases decided by the Roberts Court then provides the first data-driven insight into the Court’s activist application of justiciability doctrines. All Justices, but especially the Court’s most conservative members, frequently sidestep causes from political opponents while opening the courthouse doors to politically sympathetic litigants.

Activist judicial restraints threaten societal stability. They are doctrinally incoherent, favor concrete monetary interests, and severely undermine institutional respect for the Supreme Court. They erode the Court’s authority to act, when it must, in ways that both the public and coordinate branches will respect. To preserve its role in society, the Supreme Court must avoid judicial activism cloaked behind the rhetoric of justiciability. The Court should terminate activist judicial restraints.

Publication Title

Arizona State L. J.

Volume

58

First Page

655

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