Legislating from the bench...

[nuttylawprofessor]

What do you think that means?

What is an example of "court" legislating from the bench?

In the recent debates on Roe v. Wade and gay marriage on this board, I have seen more than one individual criticize court decisions for legislating from the bench or usurping the legislature's role. I want to know how people are defining this concept.

As always, I'm looking forward to your responses and hoping for a lively discussion.

 

[NewJersey]

Well my take on it, is that in certain regards, courts 'legislating from the bench' (either enacting laws, guaranteeing rights, or advising the legislature to enact a law that encompasses the courts' findings) is necessary. Take the civil rights campaign for example. The majority of the American public were not 'in favor' of civil rights for all Americans; however, just because the right opinion is not the popular opinion, does not equate to how it should be. The courts heard cases, and based on our Constitution and Bill of Rights, decided civil rights for all Americans is protected under our founding documents.

In present day, some equate the civil rights fight in the 60s to the gay marriage/civil union fight of today. You see a majority of the public in some states are not in favor of gay marriage (see the 40 or so state constitutional amendments passed by voters). However, judges that are ruling in favor of gay marriage or civil unions here in NJ, see that the Constitution of that state (or US) protects the rights granted by the government to civil unions to all humans. If we were to put that up to a national vote today, it would most likely not pass, due to religious convictions, homophobia, whatever that individual feels is the reason for not granting marriage rights to all. However, as I said earlier, just because the opinion is popular, does not mean it's right or justified. The courts have a role, sometimes, in passing legislation that follows the principals of our Constitution and Bill or Rights.

 

[salmoneous]

In the recent debates on Roe v. Wade and gay marriage on this board, I have seen more than one individual criticize court decisions for legislating from the bench or usurping the legislature's role. I want to know how people are defining this concept

As far as I can tell, "legislating from the bench" means "a decision I don't agree with".

 

[smartestnumber5]

As far as I can tell, "legislating from the bench" means "a decision I don't agree with".

There was a study done recently trying to use some more objective criterion of "activism" like how many congressional laws a justice struck down. Turns out that justices nominated by Republicans are more activist in this sense than those nominated by Democrats. Thomas wins the prize for the Supreme Court with Kennedy coming in 2nd and Ginsburg and Bryer are all the way down at the bottom.
http://www.nytimes.com/2005/07/06/o...774080327&ei=5090&partner=rssuserland&emc=rss

 

[pogo791]

Salmoneous is right on. James Clapp's "Dictionary of the Law" defines judicial legislation as "a disparaging term for a court decision that interprets or applies the law in a way that the speaker disagrees with, suggesting that the court has usurped the function of the legislature."

Black's Law Dictionary, in turn, gives as one definition of "judge-made law" "the law that results when judges construe statutes contrary to legislative intent."

It's obviously a thin line, though, and one open to subjective opinion. (Does anyone, even an individual member of Congress, know for sure what "legislative intent" is?) What makes this difficult is that the entire common law concept is usually associated with judge-made law.

NewJersey includes the enactment of laws, the guaranteeing of rights and the advising of the legislature to enact a law that encompasses the courts' findings, as all being part of legislating from the Bench. I'd limit this much more. I wouldn't include admonitions to the legislature to get its act together, because if a judge does that, he or she is still respectful of the legislature's basic role. I wouldn't include the full scope of "the guaranteeing of rights", because it's part of the court's role to guarantee those rights that are inherent in the Constitution or in laws. And saying that "legislating from the Bench" is the same as "the enactment of laws" is begging the question.

My take is that legislating from the Bench is the end result of judicial activism, where a judge lets his or her personal views about public policy guide their decisions - especially where these decisions ignore precedent. (This is a paraphrase of Black's def of judicial activism.)

 

[iloveboardwalk]

Sometimes judges have to correct the mistakes of the mob who insist this is a pure democracy and feel that their majority opinion should overrule the constitutional protections afforded to the minority opinions and individuals.

Sometimes judges have to correct the mistakes of power hungry and contitutionally stupid politicians who occasionally legislate based on polls and in the interest of getting re-elected instead of based on the constitution. That's called "checks and balances"

 

[Mugg Mann]

Another buzz phrase frequently cited that any thinking person should be wary about is "Strict interpretation of the Constitution".

I always have admired how those who employ this phrase do so with a straight face. Just how does a document finalized in 1776 account for concepts such as (just to name three examples) air and space flight, DNA ramifications or telephone privacy issues.

After all, how does one apply the Constitution to technologies that didn't exist at all during it's inception without broad intepretation?

I agree wholeheartedly with Salmoneous' observation about how most terms used by the general public are ones designed to mask the concept of "I have no idea about law or the concept of legal precedent, but I don't agree with the decision".

 

[NewJersey]

Salmoneous is right on. James Clapp's "Dictionary of the Law" defines judicial legislation as "a disparaging term for a court decision that interprets or applies the law in a way that the speaker disagrees with, suggesting that the court has usurped the function of the legislature."

Black's Law Dictionary, in turn, gives as one definition of "judge-made law" "the law that results when judges construe statutes contrary to legislative intent."

It's obviously a thin line, though, and one open to subjective opinion. (Does anyone, even an individual member of Congress, know for sure what "legislative intent" is?) What makes this difficult is that the entire common law concept is usually associated with judge-made law.

NewJersey includes the enactment of laws, the guaranteeing of rights and the advising of the legislature to enact a law that encompasses the courts' findings, as all being part of legislating from the Bench. I'd limit this much more. I wouldn't include admonitions to the legislature to get its act together, because if a judge does that, he or she is still respectful of the legislature's basic role. I wouldn't include the full scope of "the guaranteeing of rights", because it's part of the court's role to guarantee those rights that are inherent in the Constitution or in laws. And saying that "legislating from the Bench" is the same as "the enactment of laws" is begging the question.

My take is that legislating from the Bench is the end result of judicial activism, where a judge lets his or her personal views about public policy guide their decisions - especially where these decisions ignore precedent. (This is a paraphrase of Black's def of judicial activism.)

I was basing it off the recent ruling from the NJ Supreme Court that said the state consitution protects the rights of marriage benefits to gays and lesbians, but left it up to the legislature to enact the law, and call it civil unions or marriage.

 

[crcormier]

As far as I can tell, "legislating from the bench" means "a decision I don't agree with".

Not really much else to say. This sums it up.

 

[pogo791]

I was basing it off the recent ruling from the NJ Supreme Court that said the state consitution protects the rights of marriage benefits to gays and lesbians, but left it up to the legislature to enact the law, and call it civil unions or marriage.

OK, now I get the connection. And I can understand why you're calling this legislating from the Bench - the judge basically says that the law should say that "x has certain rights", and leaving it up to the legislature to decide how to frame the law.

 

[NewJersey]

OK, now I get the connection. And I can understand why you're calling this legislating from the Bench - the judge basically says that the law should say that "x has certain rights", and leaving it up to the legislature to decide how to frame the law.

Yes, exactly. I hate the term 'legislating from the bench' because its meant with such negative meaning, as salmoneous put it so well. Sorry, I should have worded my original post better!

 

[Fitswimmer]

Legislating from the bench is necessary. Legislatures are notoriously bad at writing law and we need judges to interpret it. Also, legislatures can't think of every possibility, so when situations arise that the legislature didn't consider when writing the law the courts have to step in.
It's only negative when a decision comes down that someone doesn't like.

 

[TheDoctor]

There was a study done recently trying to use some more objective criterion of "activism" like how many congressional laws a justice struck down. Turns out that justices nominated by Republicans are more activist in this sense than those nominated by Democrats. Thomas wins the prize for the Supreme Court with Kennedy coming in 2nd and Ginsburg and Bryer are all the way down at the bottom.
http://www.nytimes.com/2005/07/06/o...774080327&ei=5090&partner=rssuserland&emc=rss

This study is a classic. It is the conservative members of the bench who are more likely to disregard the will of the legilslature and strike a law down.

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, some activism is necessary and proper. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations.

 

[LuvDuke]

As far as I can tell, "legislating from the bench" means "a decision I don't agree with".

Ding, ding, ding, ding .............. we got a winnah here.