Prudence, Role Morality, and Restraint: Judge Wilkinson on the Separation of Powers

Caution in reviewing the actions of the legislative and executive branches has been a hallmark of the jurisprudence of Judge J. Harvie Wilkinson III. The Constitution “at most gives judges specific authority to redress violations of specific provisions,” Judge Wilkinson writes in his book Cosmic Constitutional Theory. But even when doing so, “courts must exercise great caution before injecting themselves into the vortex of varied political questions,” for “[i]t is often far preferable to allow the political institutions under our Constitution to struggle among themselves, with each bringing to bear the respective arsenal of powers the Framers accorded them.” Three related features of the Judge’s jurisprudence stand out in his work on the separation of powers: prudence, role morality, and restraint.