ABSTRACT
JUDICIAL RESTRAINT Despite the widely held belief that judges, like fools, rush in “where angels fear to tread,” courts have established rules of procedure which allow them to avoid many of the hard cases that lawyers claim make bad law. Courts, especially appellate courts, have considerable discretion over the cases they hear, and use that discretion to engage in what is often referred to as judicial gatekeeping. As Alexis de Toqueville observed in Democracy in America, virtually every issue of public policy comes before the courts sooner or later. The reason usually given for this propensity to litigate is the legalistic nature of the American people. Americans tend to have strong feelings about their rights, and courts of law are the logical forums for vindicating those rights. Consequently, every schoolchild dismissed from the football team or from the cheerleading squad seeks judicial protection of what is perceived to be, at the very least, a God-given right.
