Legislating from the Bench ~ Why It’s Not Always Such a Bad Thing

Legislating from the bench is nothing new and all judges and justices do it. Furthermore, when ruling on issues of legal conflict and vagueness, judges do establish policy.

opaHere we go again, as the Senate undertakes the process to confirm or reject the nomi- nation of Sonia Sotomayor as only the third woman and first Hispanic ever to serve on the Supreme Court, we hear the same old Republican refrain, “We don’t want justices who legislate from the bench.” To my mind, this begs a question. No, not to whether Judge Sotomayor is an activist or even a prejudicial judge. Despite text from her 2001 speech addressing how judges truly do bring individual life experiences to decisions from the bench, her judicial record indicates that her many rulings over 17 years as a district and appeals court judge have been quite moderate. My question is this: do Republicans really reject all activist judges or just activist judges who are not conservative enough?

First of all, let’s define the terms?  In a general sense, an activist is one who believes in bringing about social, political, economic, and/or environmental change for the better. This means that yours truly is an activist. But don’t we all now recognize the need for change and want things changed for the better? So then, are we not all activists? The only difference is, as liberals, conservatives and moderates in between, which changes we want and in what form we want them to take.

By extension, judicial activism is a philosophy suggesting that judges should reach beyond the Constitution to achieve results that are consistent with contemporary conditions and values. The term is most often associated with the concept of liberalism, which includes the belief that a broad interpretation of the Constitution should be made which can then be applied to specific issues. The counterpart to judicial activism is judicial restraint which is advocated by those who believe that democracy will thrive best if judges stick to the letter of the law and refrain from policy debates, deferring to the legislature to clarify legal issues. Under certain conditions, however, judicial restraint is just another form of judicial activism — I call it reverse judicial activism.

Now, I do not have a degree in Constitutional Law, but doesn’t the Constitution compel/permit all three branches of the government to legislate? Yes, I know, Article I, Section 1 of the Constitution says, “All legislative powers herein granted shall be vested in a Congress of the United States…” However, Article III, Section 2 of the Constitution grants to the Supreme Court as follows: “The judicial power shall extend to all cases, in law and equity…” The key and operative word is here is “equity” which, in 18th Century terms, means righting wrongs that the strict letter of the law fails to address. Furthermore, although not specifically enumerated as a judicial power in Article III, “Judicial Review” has been a well established and controlling precedent since the “interest conflicting” dealings of John Marshall in the 1801 case of Marbury vs. Madison.

The Executive Branch legislates too when it establishes commission and agency rules and regulations that bind us just as much as do Congressional bills signed into law by the President — that is, until a subsequent administration overturns said rules and regulations. Consider the merits of cases in Executive reviews (issues involving Social Security, the IRS, military tribunals, and agencies such as the FEC, FDA, FTC, etc.). And does a President not legislate when vetoing a bill? Of course he does.

On the flip side of all this, Congress determines facts and passes “judgments” in Congressional hearings and contempt and impeachment proceedings? So it is true that all three branches have concurrent powers and overlapping checks and balances against the other. Therefore, legislating from the bench is nothing new and all judges and justices do it. Furthermore, when ruling on issues of legal conflict and vagueness, judges do establish policy. And it is altogether appropriate and fitting, in my opinion, that they should do so, assuming a court that is balanced or at least moderate in political persuasion. Judges get the law right — finally, by ultimately getting divisive issues out of the hands of untrust- worthy, disingenuous politicians who want, more than anything else, to be reelected.

Reverse judicial activism is, to my mind, the bigger problem. This is when courts rule not to interpret the law in light of contempo- rary issues and realities. Case in point — the infamous Dred Scott decision of 1857. More recently, reverse activism was demon- strated when the Supreme Court voted last June (2008) to overturn a 32-year old Washington D.C. hand gun law, ruling that it violated the Second Amendment. Obvious to me is that the defense of Washington D.C. does not rely on armed “militias” anymore if in fact it ever did. The U.S. Army, established in 1784, if not adequate to defend the nation’s capital then and when it was invaded by the British during the War of 1812, is surely adequate today.   Therefore, since the premise of the Second Amendment is no longer valid, that a well regulated militia is necessary for the security of a free state, the citizens of Washington D.C. no longer have the need nor the right to bear arms. Come to think of it, Washington D.C. isn’t even a state, so per the “letter of the law,” the Second Amendment should not even apply.

Reverse judicial activism would also be enacted should the recent California Supreme Court decision concerning gay marriage be appealed to the highest court in the land and be upheld by the heavily conservative court despite the Fourteenth Amendment guaranteeing equal treatment under the law and due process for all citizens. With six of the nine current justices being Republican and momentum for gay marriage gaining at the state level, gay rights advocates are not at all anxious for the California Supreme Court’s ruling on Proposition Eight to be appealed.

Feel free to post a comment whether you’re in agreement or not.

Published in: on June 4, 2009 at 2:53 pm  Comments (2)  

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  1. “Reverse Judicial Activism.” That’s certainly an interesting spin, Opa.

    I think the current Senate confirmation debate itself has long gone off course. It’s exactly what the elite party in power prefers as it plays right into the hands of the liberal news media. What more people should be concerned about is the preservation of law and equity and the notion that justice is or at least should be, blind. Too bad the other elite party, not in power, cannot seem to articulate this point, effectively.

    Your key and operative word, equity (Article III, Section 2 of the Constitution) is instead I believe, solely meant to define the “new” system at the time of jurisprudence and a remedy to the limitations and inflexibility of 18th Century common law. Not necessarily or specifically meant to grant more government power to decide what ought be equitable.

    Section 2 specifies Federal jurisdiction and trial by jury. Nothing else. And to your point, nothing in Article III (or the whole of the Constitution for that matter) enumerates any definition of powers for “Judicial Review.” While still the minority, plenty would criticize the logic used in the Marbury v. Madison argument and the resulting use and acceptance of, in American law and politics. But also to your point, it is precedence. And unless overturned, it continues to give both parties of persuasion (liberal activists or conservative ‘reverse’ activists) room to abuse the powers of the Judicial branch.

    Gee, considering where we are today, with the few elite that do run our current system, I wonder if Thomas Jefferson’s prediction has finally come true.

    It again reminded me of your interpretation and mixing of the Pledge of Allegiance, the Declaration of Independence and of the Constitution, inferring more and more government power.

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” – Amendment IX to the United States Constitution.

    “The Declaration of Independence…is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.” – Troxel v. Granville, 530 U.S. 57 (2000)

    Let the debate begin 😉


  2. I seem to have struck a resonant chord with my Reverse Judicial Activism term, Tommy. Just call me the “spin” doctor. Further, your subsequent paragraph suggests that we have actually found some common ground. We agree that justice is not blind, as perhaps it should be, and that both “elite” parties, the one in-power currently and the other one, are less interested in making it so than they are in populating the Supreme Court with justices leaning one direction or the other so as to further social and economic goals, whether to sustain the status quo or to expand or restrict our current freedoms.

    To which prediction of Thomas Jefferson’s are you referring, Tommy? If you mean the one about our rulers becoming corrupt and our people becoming careless, I think it has come true. If you mean the one about financial institutions becoming more powerful and dangerous than standing armies, this one was also right on the money.

    Yes, technically you are right in your objection to my “mixing” (originally confusing) the Declaration of Independence with the Pledge of Alliance and the Constitution. Legally, there is nothing in either the Declaration of Independence or the Pledge of Alliance that confers powers to the federal government or rights to the people. My point, however, was that the promises enumerated by the first two should be addressed by the third. But then, this was merely my “liberal” bent waxing philosophically.

    As a nation, we revere the Declaration of Independence which is the basis for our claim to liberty and individual freedoms. As a nation, we have also embraced the Pledge of Alligence; we teach it to all our children. Should we strike it from our national identity, drop the “under God” phrase perhaps, or teach our children to recite, “One nation, under God, with liberity and justice for…” most… for many… or for just some?” No, I think not.


    —– Original Message —–

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