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.
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