Legislating Policy from the Bench: Five Examples

Brian Tannebaum takes on the idea that judges shouldn’t “legislate from the bench:”

That is what extreme conservatives say when they are asked what type of judge they want on the Supreme Court. They all answer in the negative, like a church choir – ‘we don’t want a judge who ‘legislates from the bench.” Ever notice that there is no follow-up question? This is because no one knows what that phrase means. No one.

If right-wingers were intellectually honest, they would say that “legislating from the bench” means thwarting the will of the people’s democratically elected representatives in the legislative and executive branches. If a court is passive, it’ll let the other branches of government do what they want; the outcome with a court that does not legislate from the bench is the same as it would be with no judicial review, or with no court at all. The test for real judicial activism is this: absent judicial review, would the result have been different? This definition and this test have the virtue of not being in the eye of the beholder. Whether the courts have allowed the other branches to do what they want is easy to determine.

But the right-wingers are not intellectually honest. If you ask a right-winger for examples of “legislating from the bench” you’ll get:

  • Dred Scott v. Sanford
  • Plessy v. Ferguson
  • Korematsu v. United States
  • Roe v. Wade
  • Kelo v. City of New London

Dred Scott fits our definition of legislating from the bench – the Supreme Court overturned Missouri’s attempt to make Mr. Scott a citizen and Congress’s declaration that Minnesota was free territory. But it was also a case of strict constitutional construction, original intent, immigration policy (a state cannot naturalize a U.S. citizen) as well as of property rights (Congress couldn’t pass a law depriving Scott’s owner of his property), all things of which the right wing is inordinately fond.

Plessy was not “legislating from the bench” by our literal definition – the Supreme Court upheld Louisiana’s racial segregation laws; the outcome would have been the same if there were no such thing as judicial review. The people’s elected representatives had their way.

Korematsu, likewise, would have turned out the same if judicial review didn’t exist. The Korematsu court allowed an executive order moving Japanese Americans into relocation camps, and upheld Mr. Korematsu’s prosecution for violating related orders. Again, the people’s elected representatives had their way.

In Roe v. Wade the Supreme Court overturned Texas’s law forbidding abortion, foiling the will of the people as expressed by the legislature. The result would have been different if there were no such thing as judicial review; that fits our value-neutral definition of legislating from the bench.

Finally, in Kelo the Court upheld the city’s condemnation of property. The elected City Council got its way; if there were no judicial review the result would have been the same.

So in three out of five of those cases, the right wing is complaining not about the Court improperly exercising its power of judicial review, but rather failing to do so. (Which explains why “To the Christian right, ‘Dred Scott‘ turns out to be a code word for ‘Roe v. Wade.’“) If there were no power of judicial review, Kelo, Korematsu, and Plessy would have turned out the same for the litigants (and for society) as they did.

Okay, so forget about Kelo, Korematsu, and Plessy. Aren’t Roe and Dred Scott (assume for the sake of argument that both were bad decisions) evidence that courts should keep their noses out of policy and let legislatures decide what the law is?

Only if we believe that the state should be able to search our homes without warrants (Mapp v. Ohio), then try us for peacefully expressing unpopular views (Edwards v. South Carolina) or for having unsanctioned sex (Lawrence v. Texas); that at trial we should be unrepresented (Gideon v. Wainwright) and should have no right to a jury (Duncan v. Louisiana); and that the state should be allowed to use illegally obtained evidence against us (Weeks), comment on our silence at trial (Griffin v. California), prove the case without allowing confrontation of witnesses (Crawford v. Washington), and execute us, notwithstanding the lack of a dead body (Coker v. Georgia), even if we are mentally retarded children (Atkins v. Virginia, Roper v. Simmons).

When the courts exercise their power of review, the people win a few and lose a few. How do we distinguish the good kind of judicial activism from the bad kind? Brian has it figured out:

“Legislating from the bench” means to interpret the Constitution in a
way that violates someone’s political or religious persuasion.

This is the right wing’s loopy dishonest definition for you: When courts should act but don’t, and our ox is gored, or when they shouldn’t act but do, and our ox is gored, that’s “legislating from the bench” by “activist judges”, and it must be stopped.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
This entry was posted in judges, judicial activism, rightwing nutjobs. Bookmark the permalink.

24 Responses to Legislating Policy from the Bench: Five Examples

  1. law says:

    There is a dangerously callous attitude among Houstonians to thumbing their nose in the face of laws they disagree with (traffic, criminal, civil – writing bad checks, etc) that is faithfully reflected in Houston Judges selectively ignoring stare decisis when it contradicts the opinions of the their voters, Houstonians.

    I would call this legislating from the bench … Houston, if not Texas, IS OVERWHELMINGLY Republican, I get it, but even in an overwhelmingly republican Judiciary/Bar I would think there WOULD AT LEAST BE ONE FEDERAL CONSTITUTIONAL QUESTION raised a year, purely by probability alone (no one legislature/county gets it right all the time) in such a big city.

    But there aren’t those expected federal constitutional challenges… Because federal laws are rarely enforced in Houston! Its partially because of the elected judiciary, and Republican Bar, as evidenced by an appalling dearth if not outright vacuum of federal law enforcement in Houston.

  2. Michael says:

    Somewhere this week, I read a blog entry or news article about controversies over judicial nominations; how they have become an industry; and, because the industries depend on controversy, how controversy is manufactured if it does not already exist. The next day, I saw my first link to the Sotomayor YouTube in which she claimed that appellate courts make policy. It was presented as if she were approving of pedophilia. Appellate courts make policy? And this is NEWS?? Why do we have court reporters that publish court opinions if not because they make policy? This is the best gun the RWNJ naysayers can point at President Obama’s first SCOTUS nominee?

    I’m now waiting for a video showing Sotomayor approving of black judicial robes.

  3. Windypundit says:

    Appellate courts make policy? Heck, just the other day I read in a blog about something called “case law.” That’s right, these judges think they’re creating law! Talk about legislating from the bench!

  4. Boll Weevil says:

    Earlier this week the Supremes handed down a decision in Montejo and it is a glaring example of “legislating from the bench.” The majority opinion was written by none other than everyone’s favorite conservative, Justice Scalia. You don’t have to read far into the opinion to get a massive dose of policy justifications for this decision.

    Heres the URL: http://www.supremecourtus.gov/opinions/08pdf/07-1529.pdf

  5. Tom says:

    You’re beating a straw man. The problem isn’t “legislating from the bench,” the problem is appellate judges substituting their personal policy preferences for the democratically determined laws of a state or the U.S.

    The judge’s job is simple: compare the law at issue with the constitutional provision understood according to it’s meaning at the time of enactment, and decide if the statute comports with the constitution.

    The trouble arises when appellate judges convolute the common original understanding of the constitution and substitute some principle derived from “emanations,” “penumbras,” or the judges’ whimsy.

    Thus, the 5 justices find a “right to privacy” extending to contraception, homosexual sodomy, and abortion, a “right” never recognized in the United States or indeed in the West, and impose that wholly made-up, not-found-in-the-text-or-original-common-understanding of the constitution in place of the democratic will of the people.

    I’ll grant that judges of all stripes fall prey to this temptation: in Lochner a majority found a hitherto never dreamt of “liberty of contract” in the 14th Amendment and used this newfound “right” to overturn New Deal legislation the judges didn’t like. See Holmes’ dissent for a succint explanation of why such judge-crafted rights are contrary to our democratic institutions.

    Windy, the common law is indeed, as Holmes would agree, an area where such judicial rule making is appropriate– but constitutional law is not the place for judges to create new “rights” out of whole cloth and bullshit us with alot of hokem about how these rights are really somehow in the constitution despite the plain meaning and common understanding of the drafters the constitution.

    • Mark Bennett says:

      Tom, “they say they want judges who won’t legislate from the bench . . .” would be a straw man only if they didn’t say that. That it’s RWNJ code for “judges with politics other than ours substituting their personal policy preferences for the democratically determined laws” is duly noted, but truthful people who are right don’t have to talk in code. Code obstructs meaningful discussion, and those who talk in code deserve to have the absurdity of their code exposed.

      If the Court in Dred Scott had done what you describe as the judge’s job, by the way, Mr. Scott would still have lost.

      • Boll Weevil says:

        If I remember correctly, George W. Bush said something about wanting to appoint justices that would be faithful the Constitution and not legislate from the bench. In his rebuttal, Al Gore said that Bush was using “code words.”

        Everyone laughed at Al Gore. Pity.

    • PJ says:

      Who decided that constitutional provisions are to be interpreted “according to it’s meaning at the time of enactment”? Where is that hermeneutic principle in the document? For that matter, where, even outside the document, do persons associated with the document’s construction say that? Or the persons associated with its ratification? One would think if the founders meant for the document to be interpreted according to their intent, they would have formally recorded their intent, rather than forbid disclosure of proceedings and leave it to chance that Madison’s notes of the constitutional convention would eventually be published (but not until 1840). Moreover, there are provisions that expressly direct the interpreter to look outside the document. See the Ninth Amendment, which says that the enumerated rights are not the only ones that exist. What rights are we to understand to have been “meant” to have been covered by this provision?

      And what “meaning” are we talking about anyway? The meaning the founders intended? The meaning the state legislators who voted for ratification understood? The meaning the persons the state legislators who voted for ratification represented understood? There were undoubtedly many “meanings,” even if we were to confine ourselves just to the founders who drafted the document.

      Your point is but a political one. Political conservatives tout this hermeneutic principle merely because they think it a convenient means to reach conservative legal ends, not because it makes any sense. And it’s a contrivance in any event, as even conservatives only rely on it when useful to reach the end they want. That is, after all, how we have “original intent” conservatives finding a right to bear arms for self-defense purposes when that never had anything to do with how the Second Amendment was “meant.”

    • Windypundit says:

      Hey Tom. I was just poking fun at the partison sniping over “policy.”

      On the other hand, can I now assume you are in favor of legalizing medical marijuana at the federal level? As far as I know, there’s nothing in the constitution describing a power to criminalize drugs, so really, shouldn’t all federal drug laws be voided?

    • If the Founders had written down every right they believed the Constitution was intended to protect, they’d still be scribbling.

      Ever look at the 9th Amendment? That was there way of saying “and the rest of ‘em, too.”

    • PJ says:

      Oh, just wanted to add one more point. Tom wrote:

      “… but constitutional law is not the place for judges to create new “rights” out of whole cloth and bullshit us with alot of hokem about how these rights are really somehow in the constitution despite the plain meaning and common understanding of the drafters the constitution.”

      The Ninth Amendment says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

      Your assertion about the “plain meaning” of the constitution is put to the lie by the Ninth Amendment. It plainly states that the people retain rights not expressly listed in the document. It’s a strange argument you make that fidelity to the constitution requires completely ignoring what it “plainly” states.

  6. Tom says:

    Dred Scott could have resulted differently under an original intent interpretation. Taney was forcing his slavery views into his analysis, distorting his reasoning. He believed that the constitution and declaration of independence were pro-slavery documents. Justices Curtis’ and McLean’s dissents illustrate that the Missouri Compromise was constitutional, and “once free, always free” was a principle that supported Dred Scott’s standing as a citizen… their dissents lay out an originalist basis for a different result in Dred Scott.

    Nevertheless, in a democracy some evils are left unaddressed by the constitution, which after all, was never intended to lay out all the rights of citizens, but only to restrict the usurpation of enumerated rights by the federal government. The people and the states would have to take action through the legislature to address social evils

    But unless we want to be ruled by an unelected oligarchy, I think it’s a bad idea having judges substituting what they think is right for what the constitution actually says, or attempting to contort the plain language and meaning of that document to reach particular outcomes on hot button social issues.

    As Lochner should have warned, activism can bite liberals just as much as conservatives. We might like results-oriented jurisprudence, but once we admit it as a legitimate practice, it can bite both ways. Do you really want Nino Scalia importing his personal policy predilictions into the supreme law of the land if he can but convince 4 other justices to come with him? Much as I would probably love those policies, I would not support them being foisted on the country through the SCOTUS.

    Let’s do it right and let the people decide policy, especially on contentious social issues, not the courts, no matter how “enlightened” they think themselves to be.

    • Mark Bennett says:

      Let the people decide policy on contentious social issues like whether we execute mentally retarded children? You would allow the government to destroy the Republican Party’s base?

      The Founders didn’t contemplate the world we face today. It’d be naive to think that all of the answers have already been written. It’s equally naive to think that a judge’s feeling for justice (“what they think is right”) can be set aside when the judge is reading the tea leaves of the Constitution to apply it to modern life.

      The courts don’t have guns and have erasers but no pencils, so they can’t really rule us, but can only restrain the other branches.

      • S.O. says:

        Too bad Americans in General are not as brazen as the founding fathers. Wasn’t it one of them that stated that every 20 years the Constitution should be re-written?

    • Michael says:

      [Judicial] activism can bite liberals as much as conservatives? The hell you say. I’ve never seen a conservative judge on the Supreme Court of Texas or the Court of CrAp bend a rule of law (or add a new gloss to the ever-expanding doctrine of harmless error) in order to achieve a result…

  7. Tom says:

    Why are you guys afraid of leaving these issues to the people anyway? I suspect it’s because you know you can’t prevail democratically, or are too lazy to try, so the only resort is having judges contort the constitution to get the results you can’t get in the ballot box.

    Abortion is a perfect example… it was being liberalized in many states in a democratic fashion before Roe robbed the people of their right to pass on the question. Instead of trying to convince the people in the states that this liberalization was the way to go, and changing the law state by state (or not if the people could not be convinced), the court short-circuited the democratic give and take, which in turn fueled a resentful pro life movement which could accurately say that the court had ignored the will of the people on the issue.

    • Mark Bennett says:

      Who are “you guys”?

      I should write a post about what we’ll get if we leave things to the people. Oh, wait, I just did.

    • Michael says:

      It’s not so much us “guys” who are afraid of leaving issues to the people as it is the founding fathers. They’re the ones who created the unelected, life-tenured federal judiciary. Evidently some rights were too precious to trust to the people in 1787. Guess what?! Still are.

    • S.O. says:

      If we could ACTUALLY leave it to the people it would be fairly interesting; However seeing as the people have not shown their majority will in about 100 years, I find it funny that you should mention “short-circuited” the” people’s will”. Our Government and the Officials that slime up the chairs daily are run not by the ‘people’ as you state but by special interest groups that have the two things Politicians love, money and a vocal minority. Most Americans only take issue when something happens to THEM, but could care less if little Billy loses an eye to a poorly manufactured toy.

  8. Tom says:

    Executing a mentally disabled criminal is a great example, Mark. The people of the states saw no problem in doing it, at least in those states that allow the DP. Along comes the Court and decides that well, although it’s never in 200 years been understood that way, we’re calling it cruel and unusual, against the commonly held understanding of the 8th at its framing and also for the 200 years before this decision.

    Liberals could not be bothered to change minds and hearts and state laws, so they relied on their old buds, the SCOTUS, to do UN-democratically what they could not accomplish democratically.

    And again, I’ll just point out that if someday the page turns and there are 5 justices who feel the other way, they could just as plainly rule that their conceptions of cruel and unusual allow waterboarding or execution for rape or theft.

    I have a sneaking suspicion if that happens, we won’t be hearing about the “living constitution” anymore.

    • Mark Bennett says:

      I appreciate your honesty. You’re not big on evolving standards of decency, I see. When, in your opinion, did we humans hit our ethical zenith as a race?

  9. John David Galt says:

    I beg to differ with your definition. Merely overturning a statute (whether passed by a legislature or by voters) to conform with Constitutional limits on what a statute can do, does not qualify as “legislating from the bench.” That label belongs only to decisions that read things into the Constitution which are simply not there.

    Though I disagree with Dred Scott, both the property right and the exclusive federal jurisdiction over immigration on which that decision relied are written in the Constitution. But I don’t believe any honest reader can find in the Constitution a “right to privacy” broad enough to justify the decision in Roe v. Wade.

    I’m pro-choice, but nevertheless would like to see Roe overturned, because it set an awful precedent that has led to other federal intrusions into topics where, Constitutionally, only the states have jurisdiction. The whole point of federalism was to limit the scope of the federal government’s power. I want those limits back in place.

    • Mark Bennett says:

      I guess we can agree that the RWNJs’ definition of “legislating from the bench”, which encompasses Korematsu and Dred Scott as well as Roe, is dishonest. Yours is better than theirs, but mine has certain virtues that yours doesn’t: for example, it’s not subjective. Reasonable minds can usually agree when the Court is unmaking state law, but reasonable minds can certainly disagree on what our Constitutional rights are.

      The Founders didn’t include every right explicitly in the Constitution; they acknowledged that with the Ninth Amendment, which says that just because it isn’t enumerated doesn’t mean a right doesn’t exist. (They were concerned that the Bill of Rights would be read as you would read it: as an exclusive list.)

      The U.S. Constitution provides a floor for individual rights, not a ceiling. If a State wants to raise the floor with its own constitution, it can do so and there’s not a damn thing the Supremes can do about it. If the State of Ohio wanted to prevent its agents from manhandling people on mere suspicion (would James Madison have allowed that?), it could. But instead it argued in the Supreme Court that its agents should be able to do so.

      Almost universally, the Court’s restriction of our freedoms has been at the behest of the States. It’s a common fallacy among people who fancy themselves libertarians that human freedom would somehow increases if we took away the Supreme Court’s metaphorical eraser, so that state governments had more power to make laws restricting our freedom. State governments are no less an enemy of human freedom than the Federal government and, as S.O. correctly points out, the People aren’t really running things anymore. There’s irony in your espousing a pro-government, anti-freedom doctrine using the Galt moniker.

      If you were looking for precedential cases expanding the federal government’s power to make people less free (rather than to make State governments less powerful), you’d be barking up the wrong tree with Roe. NLRB v. Jones & Laughlin Steel and the following Commerce Clause cases are where you’d want to look.

      • PJ says:

        What gives with modern conservatives? It’s like every day is opposite day with them. Up is down. Day is night. Black is white. And the Ninth Amendment means that rights can’t be “read into” the Constitution.

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