Judges primarily decide cases, but they also make strategic decisions aimed at maintaining the constitutional authority of the judiciary as a whole. Doctrines, bundling, timing, and public engagement are among the means by which trust, arguably the most important foundation of judicial authority, is acquired and disbursed.

It can be difficult to identify and evaluate the range of techniques that a particular court may deploy in aid of its institutional legitimacy, or the collective legitimacy of the judiciary as a whole, but two recent publications make that task a lot more manageable. Lewis Graham has mapped a shift towards greater restraint in public law cases heard by the UK Supreme Court by reference to ten markers capable of signifying judicial restraint and, by reverse implication, activism. Curtis Bradley and Neil Siegel have identified a repertoire of self-protective mechanisms deployed by the US Supreme Court over the course of its long and controversial history. Both papers deserve the widest possible readership among court-watchers and public lawyers in particular.

Graham and Bradley/Siegel respectively examine different but complementary facets of judicial behaviour. Graham sets out an internal account of how activism and restraint may be evidenced in the reasoning and outcomes of public law cases. Bradley and Siegel argue that a court may protect judicial authority when it is vulnerable to political punishment or defiance through both internal and external stratagems. Arguably, the two lenses can usefully augment one another in that internal evidence of activism or restraint may be more explicable when considered as a possible mode of self-protection, just as internal and external modes of self-protection may be explained with greater precision by way of activism or restraint metrics. What follows converts the markers and mechanisms encapsulated by these papers into questions, and combines them into a composite checklist for monitoring judicial behaviour. The questions inevitably overlap, and the list is not exhaustive. It is intended as a set of prompts for socio-legal, semi-economic analyses which characterise judicial authority as a resource that can be spent and saved, or in extremis, hoarded and squandered.

Graham’s signals

In his 2024 article, linked above, Graham defines the word restraint largely synonymously with conservatism in its non-party-political sense to mean caution, moderation, a preference for certainty and consistency, and some resistance to change. In his book about Judicial Individuality on the UK Supreme Court – the tenth chapter of which builds on the above-mentioned article to some extent – Graham distinguishes this broadly conceived activism-restraint scale from a liberal-conservative scale and an institutional-independent scale, while acknowledging that all three are essentially heuristic descriptors. For present purposes, his original scale has the greatest purchase by virtue of its generality. Based on that approach, Graham concluded that there is strong evidence of restraint on the part of the UK Supreme Court in recent years by reference to the first five benchmarks below, whereas the later five produce a patchier picture. For case-level illustrations, Graham’s article should be consulted. The checklist below distils those illustrations into generic questions for the benefit of academic observers and, perhaps, for judges interested in reflecting on their own behaviour. It is possible (indeed, it is common) for one signal to reveal activism while another reveals restraint. Careful cumulative assessments are therefore likely to be less amenable to critique. 

1. Does the court give the legislature a wide berth? Relevant signs of restraint include rigid separation of powers reasoning, deference to legislative choices about social or economic policy areas in particular, less intense scrutiny where genuine legislative deliberation has been brought to bear, and a reluctance to reopen balancing exercises already struck through democratic processes more generally.

2. Does the court give the executive a wide berth? Restraint indicators include deference on grounds of resource implications, administrative domino effects, foreign policy or national security considerations, and specialist expertise more generally.

3. How does the court conceptualise the effects of international law? A restrained conception might rely on strict dualism by way of resistance to the domestic spillover (or ‘passporting’) of unincorporated treaties.

4. How does the court approach the protection of human rights? Consider claimant success rates but also look beyond them to the intensity of proportionality review, to limitations on the temporal scope of relevant claims, to any curtailment of remedies (even declaratory ones), and to the narrowness of common law rights reasoning, among other things.

5. Does the court decline to rely on public policy arguments when choosing between potential solutions to the dispute before it? Identify any reasoning that privileges legal rules and established frameworks over judicial assessments of fairness, administrative efficiency, timeliness, proportionality, etc. 

6. Does the court defer to lower courts or tribunals? This might be exhibited by a tolerant response to imperfect reasoning or a reluctance to revisit fact sensitive evaluations. Finality and certainty may be deemed more important than total accuracy. 

7. Does the court use the concept of jurisdiction to increase or decrease the breadth of its role?Consider whether its reasoning leaves disputes to other bodies instead of recognising a fuller supervisory role, and whether it adheres to a strict distinction between (hands off) reviews and (hands on) appeals.

8. Does the court’s approach to statutory interpretation favour text, purpose or context? Some indicia here include the use or rejection of external aids to statutory interpretation and the weight given to concepts like legislative intention, purpose, and context.

9. Does the court preserve precedent while altering its practical reach? Subtly activist practices include narrowing or distinguishing earlier authorities, framing inconvenient passages as dissents, obiter dicta or per incuriam, and presenting doctrinal change as continuity.

10. Does the court prefer legal certainty over flexible discretion? Check for bright line rules and easily administrable tests, which usually suggest or mandate restraint, as opposed to reasoning which leaves scope for discretion where a standard like fairness or justice demands it.

Bradley and Siegel’s signals

Bradley and Siegel acknowledge that their account of judicial behaviour, and the self-protection mechanisms courts might employ, is premised on the understanding that courts are genuinely vulnerable to political threats. In Hamiltonian parlance, courts lack the sword and the purse. They may be punished or ignored if they do not protect the constitutional conditions likely to ensure that their judgments are obeyed. The questions below track Bradley and Siegel’s suggested signals of self-protection to watch out for.

11. Has the court avoided or postponed a decision? Examples include refusing permission to appeal in the UK context, or denying certiorari in American terms, and using jurisdictional or justiciability limits.

12. Has the court chosen a narrow path through the dispute? Minimalism is exemplified by things like narrowly decided opinions, gradual developments, confrontation-reducing remedies, and (in the US) emergency or interim orders used to manage interactions between lower courts and the executive. Answers to this question are where the greatest convergence with Graham’s restraint markers is likely to emerge.

13. Has the court bundled an unwelcome result with something that softens or offsets it? Strategic bundling is where one message is packaged with another – think of adverse ratio decidendi but with advantageous obiter dicta, such as a limit on executive action accompanied by guidance on effective legislative authorisation.

14. Has the court used rhetoric, symbolism or communication to protect judicial authority? Relevant techniques include enlarged panels, unanimity, appeals to the national ethos or the public interest, and extra-judicial public engagement by the President, Chief Justice or another institutional leader. 

These questions offer a two-stage guide to monitoring the judiciary. The first stage involves exploring whether Graham’s markers suggest activism, restraint, or a mixture of both in the court’s legal reasoning and outcomes. The second stage involves an assessment as to whether Bradley and Siegel’s tools of self-protection may also be in play as a consequence of the wider constitutional context in which a particular court is operating. As indicated above, the checklist is aimed principally at scholarly spectators, though it may also be useful to judges and institutional leaders who are reflecting on how judicial authority is maintained. Obviously, the second stage calls for special care given that certain decisions may be legally unavoidable and constitutionally consequential at the same time. Moreover, to repeat, some questions overlap and others could be added. 

Just the same, it is hoped that this broad primer will be useful to socio-legal, semi-economic analysts of judicial behaviour. Graham’s work is careful to recognise both the risks of politicisation underpinning absolutist concepts of judicial neutrality and the risks of refusing to examine judicial behaviour realistically. Likewise, Bradley and Siegel stress that self-protection can carry costs, including the significant danger of weakened judicial independence, but that ignoring institutional vulnerability carries costs too. That shared sense of perspective must remain front and centre when monitoring the judiciary. Spent too freely, judicial authority may not be available when most needed; preserved avariciously, it can render fundamental rights and constitutional principles hollow. Similarly, the perils of overstating the degree of judicial activism, restraint or self-protection evidenced by a particular body of behaviour are arguably equal to the perils of understating them. 

Dr Conor McCormick is a Reader in the School of Law at Queen’s University Belfast. The author is grateful to Dr Paul Scott and Dr Leah Trueblood for reviewing an earlier draft of this post.

(Suggested citation: C. McCormick, ‘Monitoring the Judiciary’, U.K. Const. L. Blog (8th June 2026) (available at https://ukconstitutionallaw.org/))