The common denominator of all these maxims of prudence is the concept of judicial restraint. “We do not sit,” said Justice Frankfurter, “like a kadi under a tree dispensing justice according to considerations of individual expediency.”796 “[A] jurist is not to innovate at pleasure,” wrote Justice Cardozo. “He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life.”797 All Justices will, of course, claim adherence to proper restraint,798 but in some cases at least, such as Justice Frankfurter’s dissent in the Flag Salute Case,799 the practice can be readily observed. The degree of restraint, however, the degree to which legislative enactments should be subjected to judicial scrutiny, is a matter of uncertain and shifting opinion
- Terminiello v. City of Chicago, 337 U.S. 1, 11 (1949) (dissenting).
- B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 141 (1921).
- Compare Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (Justice Douglas), with id. at 507 (Justice Black).
- West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 646 (1943) (dissenting).