It’s a term we don’t think about much in our day-to-day lives, but with the current candidacies of four Ohioans for two seats on Ohio’s Supreme Court, it is not a bad time to recall its meaning, and why it is important.
Judicial restraint describes one of two principal judicial philosophies, the other being judicial activism. Generally, judges who employ judicial restraint make judgements based on the law – up to and including the constitutions of Ohio and the United States – rather than on their own personal views of the way things ought to be.
Judicial activism, by comparison, describes judges who inject their own personal policy preferences into their decision-making. Because legal decisions have the force of law, judicial activism is sometimes called “legislating from the bench,” and it is a usurpation of the powers of duly elected legislators, whose job it is to make our laws.
The greatness of the American system of government revolves around the checks and balances created by the division of government into the executive, legislative and judicial branches. Each branch has its specifically identified role. For the system to work properly, each branch must stay in its lane.
In our system, the legislative branch makes the laws, and when activist judges take that power to themselves, it thwarts the will of the people expressed through duly elected senators and representatives. Instead, it substitutes the will of a single judge or a small group of judges in its place. When it happens, we no longer have the rule of law, but the rule of individuals, which is the opposite of what we stand for.
Judges who practice judicial restraint are disciplined judges. They say, in effect, “To be a judge you must be prepared to make decisions supporting policies you may disagree with, because that’s the law as passed by legislators.”
While it sounds academic, the restraint/activist difference has important application right in our back yards. Twenty years ago, Ohio had an activist Supreme Court. Its members were unapologetic about using their power to impose their own policy preferences on the rest of us. One member of that court even went so far as to brag that he found it easier to line up four votes for his ideas on the Supreme Court than it had been to line up a 17-vote majority during his previous service in the Ohio Senate.
In one notorious ruling, a man who was driving his wife’s vehicle and on his own time was killed in an accident by an uninsured motorist. The court ruled that the deceased’s employer’s insurance was liable and required to pay damages, despite the fact that the employer had no connection whatsoever to the accident.
The result was devastating. Insurance companies stopped writing coverage for uninsured and under-insured motorist cases, and claims and premiums shot up. There were estimates the case alone cost corporate insurance companies $1.5 billion until a changed court reversed the case four years later.
And the case sent a signal to the nation that Ohio had an out-of-control, anti-business court that simply ignored the plain meaning of the legally binding insurance contracts it had before it.
The same justices, in the face of General Assembly passage of major tort reform legislation, simply threw out the new law because it said it was “too broad.” In other words, they blatantly substituted their own preferences for those of the legislators Ohioans elected to do that job.
Ohioans didn’t like what had happened, and over two election cycles, put in place a majority of justices who saw their jobs as interpreting the law, rather than creating it. These justices exercised judicial restraint, subordinating their own preferences to the law as written by a separate, co-equal branch of government.
They ruled on law, and not on policy.
That’s why, for almost two decades, Ohioans and Ohio businesses have enjoyed a stable, predictable business climate where contracts mean what they say without the risk that some judges will simply rewrite them based on their own preferences.
This stable, predictable legal climate is vital to all of us. Individually, it is our best assurance of justice if we ever come before the courts. And in our work life, it is a key ingredient of a stable business climate, and therefore a stable job climate.
Pat Tiberi is president and CEO of the Ohio Business Roundtable. Views expressed are not necessarily those of The Perry County Tribune.