legislating from the bench

[Spexvet]

I keep hearing "legislating from the bench". How does this work. Do judges submit bills to congress? Or is it just the phrase that conservatives use when a court doesn't rule in their favor? And if the court rules in favor of the conservative perspective, why is that not "legislating from the bench". Can somebody please explain?

[Spexvet]

Anybody???? Do I see any hands?????


C'mon! Most of you outspoken conservatives had used the phrase. Were you using words that, when arranged in this order, have no meaning? Can't explain it?
wassamatta?

[chip anderson]

Ever heard of Roe vs. Wade? That was legislating from the bench.

Extending the interstate commerse act to include everything for purposes of regulation and taxation was legislating from the bench.

The recent case where private property may be seized by "Eminate Domain" for the purposes of higher taxation with new uses (as opposed to the public good or need) is legislation from the bench.

Need I go on?

Chip

[Judy Canty]

Bush vs. Gore

[Pete Hanlin]

I'm not sure if I've ever used the phrase (although I am sure someone can look it up to see if I have), but I believe the basic meaning of the phrase is probably related to a liberality in interpreting the Constitution (with no intent to use the word "liberal" disparagingly). In other words, "inventing"- or as my colleague Robert likes to term it "recognizing" rights not necessarily written per se in the Constitution.

On abortion, for example, prior to Roe v. Wade, the states had the ability to either outlaw or condone abortion on a state-by-state basis. Using a strict interpretation of the Constitution, some would say that was the proper manner by which to handle this issue. Congress certainly wasn't going to pass a federal law legalizing abortion on a national basis- but the Supreme Court via their ruling did just that.

One could argue- perhaps correctly- that the Supreme Court was merely recognizing a woman's perogative to terminate the life of an unborn child. While this right is not specifically stated in the Constitution, the majority held that it was implied by other actually specified rights. Its certainly not an issue covered verbatim in the Constitution, so that's up to debate.

Anyway, "legislating from the bench" is surely an emotivist term intended to produce a certain reaction among conservatives. However, the jist is there- the judicial branch does indeed sometimes make rulings that have the same effect as legislation. Legislation is usually debated and decided by the legislative branch. Its not unique to the judicial branch, however. I believe the executive branch also has the ability to "legislate" through executive orders (I'm a little fuzzy on that point, however).

[chm2023]

I'm not sure if I've ever used the phrase (although I am sure someone can look it up to see if I have), but I believe the basic meaning of the phrase is probably related to a liberality in interpreting the Constitution (with no intent to use the word "liberal" disparagingly). In other words, "inventing"- or as my colleague Robert likes to term it "recognizing" rights not necessarily written per se in the Constitution.

On abortion, for example, prior to Roe v. Wade, the states had the ability to either outlaw or condone abortion on a state-by-state basis. Using a strict interpretation of the Constitution, some would say that was the proper manner by which to handle this issue. Congress certainly wasn't going to pass a federal law legalizing abortion on a national basis- but the Supreme Court via their ruling did just that.

One could argue- perhaps correctly- that the Supreme Court was merely recognizing a woman's perogative to terminate the life of an unborn child. While this right is not specifically stated in the Constitution, the majority held that it was implied by other actually specified rights. Its certainly not an issue covered verbatim in the Constitution, so that's up to debate.

Anyway, "legislating from the bench" is surely an emotivist term intended to produce a certain reaction among conservatives. However, the jist is there- the judicial branch does indeed sometimes make rulings that have the same effect as legislation. Legislation is usually debated and decided by the legislative branch. Its not unique to the judicial branch, however. I believe the executive branch also has the ability to "legislate" through executive orders (I'm a little fuzzy on that point, however).

The Roe V Wade issue is interesting in this context. Abortion is not mentioned in the Constitution, therefore making this action illegal is outside of the scope of government if you are a strict constructionist--meaning you always err on the side of "if it isn't mentioned, then it's not up to the government". And of course, states are prohibited from making laws that conflict with the Constitution as well, so a strict constructionist looks a state law prohibiting abortion,and the default should be "where does it say this is the state's business?"

The big issues here are things that aren't addressed in the Constitution--interstate commerce per Chip's example. Well, the founders had no way of foreseeing television or internet or mass communications period. As these issues are addressed specifically, any federal ruling could be construed as "legislating from the bench" as there is no Constitutional foundation. And then there is the issue of things like civil rights--are state rights to trump individual rights? If a state law is flawed and hurtful to its citizens, e.g. poll taxes, shouldn't the citizenry have some avenue to challenge that law?

Chip's example of the recent eminent domain ruling is off point I believe--think it was an awful decision, but the question was what is the "common good" in this context, a legitimate issue for the judiciary whose job is to interpret the law. I thought this was the point of checks and balances--the legislature enacts laws that can be questioned (as to their legality, Constitutionality) by citizens via the judiciary.

[shanbaum]

Chip's example is actually precisely on point - it's just precisely the opposite of what he thinks it is.

The Kelo ruling is an example of the court deferring to the judgment of a legislature - in this case, the Connecticut General Assembly; that's the outfit that passed legislation that enabled the town of New London to exercise the power of eminent domain to force Mrs. Kelo to sell her house to the town.

The outcome that Chip would have liked to have seen would have required "judicial activism"; that is, he wants the U.S. Supreme Court to rule that Connecticut doesn't have the power to use eminent domain in this way. Of course, that's exactly what that court was doing in Roe, when it told Texas that it didn't have the power to force Jane Roe to carry her child to term.

So, as usual, we see that what really matters to most folks is the outcome - how you get there is regarded as obscure and technical, and no one wants to take the trouble to actually understand all that stuff, really. A good slogan is usually enough, and here we have a couple of them.

It should not be forgotten that the reason that anyone uses the term "legislating from the bench" is that it became very popular during the school desegregation battle that began in earnest in the 1950's. Racists were disappointed that they couldn't simply remove the legal requirement for segregation (a/k/a de jure) and replace it with de facto segregation. Because the legislatures refused to enforce the law in any meaningful way (that is, by actually desegregating schools), judges took it upon themselves to do so.

In fact, that's the kind of thing we want the judiciary to do. When each branch does its job properly, there will be tension but little conflict. When the legislature abdicates its responsibility (see segregation, above), or when it oversteps its authority (see, e.g., U.S. v. Lopez, holding the Gun-Free School Zones Act unconstitutional), you should be very glad that there are other branches to provide those "checks and balances" of which you've no doubt heard.

By the way, authority over interstate commerce is specifically granted to the Congress by the Constitution. It has been Congress, and not the courts, that has stretched the meaning of the Commerce Clause beyond all recognition. Indeed, that's just another instance where to complain about the misuse of that clause is to complain about an insufficiently "activist" judiciary.

'Course, the Chips of the nation could care less about the reasoning behind the law. They just want abortion to be illegal, and prayer in public schools to be legal; the law be damned.

[Pete Hanlin]

Because the legislatures refused to enforce the law in any meaningful way (that is, by actually desegregating schools), judges took it upon themselves to do so. In fact, that's the kind of thing we want the judiciary to do.
Wow, really? We want nine lawyers-become-Supreme-Court-Justices to "take it upon themselves" to cross over into the realm of legislating? I agree with your take on the "eminent domain" ruling- in fact, the liberals on the SC have been taking most of the heat for their role in this decision. With this statement, however, I think you are revealing a bit of a double standard.

Namely, you blithely advocate and support the judiciary taking on an activist role on issues and toss criticism at those who do not comprehend or agree with the "rightness" of their actions. Of course, I'm assuming rightness is- as it often is here- defined by Robert Shanbaum, and therein lies the hypocrisy. You advocate the Supreme Court taking a legislative activist role- but only when their opinion matches that of Robert Shanbaum. In other words, you yourself have the same bias you criticise in others (the outcome is what you are interested in).

For example, suppose the Supreme Court were one day composed of a majority of justices who decide to define the boundary of rights closer to the side of the unborn child (i.e., abortion is deemed by the Supreme Court to be illegal, because it infringes on the right of an unborn child to life, liberty, and the pursuit of happiness). I would imagine all sorts of complaints issuing forth on the "travesty" of the court's ruling. I would further imagine you would rail against anyone who condescendingly commented that the justices were simply "taking it upon themselves" to cross over to effectively legislate from the bench since the legislators were obviously unwilling to protect the rights of an unborn American.

This is the same kind of attitude that allows NPR to humorously (although I doubt it is intentional humor) call one of their programs "All Things Considered." (I get a chuckle every time I hear that title. That's like Rush Limbaugh trying to pass himself off as an objective minded moderate...)

[Spexvet]

Chip,
Who introduced the bills? Scalia? Thomas? O'Connor?

Ever heard of Roe vs. Wade? That was legislating from the bench.

Legislation came from the state level, the Supreme Court ruled on a law suit from an individual. They ruled that the state law violated constitutional rights. Where's the law they created?

Extending the interstate commerse act to include everything for purposes of regulation and taxation was legislating from the bench.

Legislation came from the house or senate of the federal government.

The recent case where private property may be seized by "Eminate Domain" for the purposes of higher taxation with new uses (as opposed to the public good or need) is legislation from the bench.

Legislation came from state level, the Supreme Court ruled on a law suit from an individual.They ruled that the state law did not violate constitutional rights. Where's the law they created?

[shanbaum]

Wow, really? We want nine lawyers-become-Supreme-Court-Justices to "take it upon themselves" to cross over into the realm of legislating? I agree with your take on the "eminent domain" ruling- in fact, the liberals on the SC have been taking most of the heat for their role in this decision. With this statement, however, I think you are revealing a bit of a double standard.

Namely, you blithely advocate and support the judiciary taking on an activist role on issues and toss criticism at those who do not comprehend or agree with the "rightness" of their actions. Of course, I'm assuming rightness is- as it often is here- defined by Robert Shanbaum, and therein lies the hypocrisy. You advocate the Supreme Court taking a legislative activist role- but only when their opinion matches that of Robert Shanbaum. In other words, you yourself have the same bias you criticise in others (the outcome is what you are interested in).

For example, suppose the Supreme Court were one day composed of a majority of justices who decide to define the boundary of rights closer to the side of the unborn child (i.e., abortion is deemed by the Supreme Court to be illegal, because it infringes on the right of an unborn child to life, liberty, and the pursuit of happiness). I would imagine all sorts of complaints issuing forth on the "travesty" of the court's ruling. I would further imagine you would rail against anyone who condescendingly commented that the justices were simply "taking it upon themselves" to cross over to effectively legislate from the bench since the legislators were obviously unwilling to protect the rights of an unborn American.

This is the same kind of attitude that allows NPR to humorously (although I doubt it is intentional humor) call one of their programs "All Things Considered." (I get a chuckle every time I hear that title. That's like Rush Limbaugh trying to pass himself off as an objective minded moderate...)

SCOTUS could, I suppose, find new rights for a new legal person (the unborn child), and it would be very interesting to see the reasoning that would support such a finding. Far more likely, they would simply overrule Roe's finding of women's liberty rights - it wouldn't be such a stretch to argue that the Constitution just doesn't protect so many rights as the misguided Warren and Burger courts found.

With regard to your objection to the court "crossing over into the realm of legislating", what do you propose in its place? In the not-so-hypothetical example of a court ruling that schools must be integrated (to preserve the equal-protection rights of the minority), and a legislature's refusal to comply, what do you think should happen next?

[Spexvet]

Bush vs. Gore

This always comes to mind when I hear "supreme court activism" :hammer:

[chip anderson]

The "right" they created was to decide that tax revenue increases are greater than property rights. In the past this "right" of the state was restricted to beneficial public works, like highways, reservoirs, etc. Now, if yo' farm ain't payin as much taxes and a hamburger joint would you can be dispossessed for "the public good."

Perhaps this is not an important "right" to you but it does effectively eliminate your "right" to private property.

I know you are to be "compensated" at whatever the authorities think is fair value, but you might just value the property that has been in your family for generations (I do not have same) more than money.:hammer:

[Pete Hanlin]

Regarding Bush v. Gore (which was the issue, but not the actual case), I'm assuming you're being facetious. The Supreme Court made every effort to stay out of that issue, by simply setting aside the initial- ridiculous- ruling of the Florida Supreme Court. In effect, it told the Florida justices to "get real here." Of course, the Florida court just couldn't resist the allure of idocy (see, here I'm being hypocritical, because I'm making judgements based on my own opinions) and squandered their opportunity to correct their decision during their do-over.
Of course, the fact that every recount conducted since has reaffirmed that the end result of the decision was correct is besides the point. This was a case where election law stated the period allowed for recounts, the state official with jurisdiction in the matter (who it could be argued was partisan) had made a ruling within the bounds of her authority, and the procedure being used to conduct the recounts was almost humorous if not so tragically flawed.

Anyway, I believe the Supreme Court is tasked with determining the constitutionality of laws passed by the legislature- as well determining how those laws are applied to society. If there was a law written that infringed the civil rights of minorities, it is within the Supreme Court's power to judge that law unconstitutional. Again, we are right back to a discussion regarding how one interprets what is- and isn't- covered in the Constitution.

Personally, I believe integration is a no-brainer. Since the question has been posed regarding what the court could have done, however, I would point to what I believe is commonly called Title IX (might not be remembering the name correctly). This is where schools are required to spend as much money on women's athletics as they do on men's. There could theoretically have been a requirement to spend equal amounts of money on segregated schools.

Again, I'm not advocating that as a "should have happened," I'm just answering a question as to how it could have been handled differently.

[shanbaum]

There could theoretically have been a requirement to spend equal amounts of money on segregated schools.

Again, I'm not advocating that as a "should have happened," I'm just answering a question as to how it could have been handled differently.

That's just re-phrasing the question.

1) Were a court to order a legislature to spend equal amounts of money, that's not "legislating from the bench", but ordering busing (for instance) is?

2) What happens if the legislature simply refuses to spend equal amounts of money?

[Pete Hanlin]

The difference, I suppose is that one decision is a bit more prescriptive than the other. Spending equal money leaves a lot more to the legislator's discretion than dictating a specific action- that is, you will put these children in the same building even if that requires physically transporting them outside their communities.

One also reaches further than the other. Do I have a Constitutional right to attend school in a particular building outside of my local area if my school has the same opportunity to spend funds on my education (which segregated schools did not have when desegregation was ordered)? If the answer is "yes," than I'll turn the question around and inquire why liberals take such an issue with school choice (yes, that's changing the subject).

Are some legislators bigots? I have no doubt that some were and still are. Are some Supreme Court members political activists? Yes, some are. Franklin Roosevelt ran into activist justices, IMO, when he tried to pass his social programs. I would suggest your tune about justices who legislate from the bench would have been different in that era- when the Supreme Court was in effect attempting to dictate the policies of the executive branch.

[shanbaum]

Are some legislators bigots? I have no doubt that some were and still are. Are some Supreme Court members political activists? Yes, some are. Franklin Roosevelt ran into activist justices, IMO, when he tried to pass his social programs. I would suggest your tune about justices who legislate from the bench would have been different in that era- when the Supreme Court was in effect attempting to dictate the policies of the executive branch.

Frankly, I'm not sure that you know what my "tune" is, or that we particularly disagree on the question. My point initially was that these phrases ("judicial activism", "legislating from the bench", and "strict construction") are most often used with profound imprecision by people who know little about them, and who are often simply interested in certain outcomes. I don't see where you've written anything that directly disputes that. You haven't really clarified what you think "legislating from the bench" might be, except with your comment about the "prescriptiveness" of various kinds of rulings, with which I agree - judges shouldn't have to fashion complex remedies or schemes which seem to be regulatory in nature; although as often as not, legislatures pass glib and ambiguous statutes which require extensive fleshing-out by either administrative agencies or the judiciary - or both.

[chip anderson]

Integration was a lot less of a no brainer in states with few people to integrate.
Now 50% of our entire school budget goes to bussing, not classrooms. Even when integration was a "new thing" I never met anyone who wanted bussing or to abandon the neighborhood school concept, no matter what the Federal Government felt it would do for them. This includes all of my ethnic friends which believe it or not are legion.

Chip

[shanbaum]

Integration was a lot less of a no brainer in states with few people to integrate.
Now 50% of our entire school budget goes to bussing, not classrooms. Even when integration was a "new thing" I never met anyone who wanted bussing or to abandon the neighborhood school concept, no matter what the Federal Government felt it would do for them. This includes all of my ethnic friends which believe it or not are legion.

Chip

Yeah, well, I don't think it's a particularly good idea either, but I really don't have time to come up with a better solution right this sec.

[chm2023]

Integration was a lot less of a no brainer in states with few people to integrate.
Now 50% of our entire school budget goes to bussing, not classrooms. Even when integration was a "new thing" I never met anyone who wanted bussing or to abandon the neighborhood school concept, no matter what the Federal Government felt it would do for them. This includes all of my ethnic friends which believe it or not are legion.

Chip

I don't think Mississippi is evil. Damn peculiar name though.....I believe the neighborhood school concept is a whole lot more palatable when the quality of education is truly, or even more or less, "equal" among the neighborhoods. I guess we could refer to this as "separate but equal". Oh dear God.

[Pete Hanlin]

I'll concede that many who throw around such phrases often have little idea of what they really mean (on both sides of the aisle). The proposition that people should really be more aware of the issues they become impassioned about is one I would heartily share.

Additionally, it would seem we agree that the judiciary should avoid making complex and specific remedies to societal problems (like forced bussing) whenever possible.

As to my own definition of "legislating from the bench." Once the judiciary steps beyond simply setting aside an unconstitutional law- or determining proper application of an existing law- they have in effect legislated. Your point- which is well made- regarding legislators who refuse to protect Constitutional rights would leave us with a dilemma in the absence of judicial action. Strictly speaking, however, the Constitution makes no provision that guarantees an individual's right to attend any specific school.

Interestingly enough, I was reading in a scientific journal that work is progressing on developing an "artificial womb" that would allow couples to bring a child to term. Assuming such a device could be perfected, and assuming extracting a fetus to be placed in such a device would pose no greater risk to a pregnant woman compared to an abortion, I believe we would have quite a dilemma regarding the right of an unborn child to life. (I think I raised this as a question some months ago.) It would be interesting to see how the court would rule on that issue! Also, what of the rights of a father. For example, a couple conceives, the mother determines she does not want to carry the child, but the father desires the child...