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Friday, July 17, 2009

Is Legislating From the Bench Appropriate?

So says Time Magazine writer Jeffrey Rosen.

The idea that the Supreme Court can make policy shouldn't be controversial after its decisions in two of the most contentious cases of the term that ended last month, one involving voting rights and the other affirmative action. In the voting-rights case, Chief Justice John Roberts produced the most impressive example of judicial statesmanship of his tenure by persuading all but one of his fellow Justices to converge around a result that never occurred to Congress when it passed the Voting Rights Act in 1965. A prudent demonstration of judicial policymaking, the decision was widely praised by liberals and conservatives for inviting a dialogue with Congress and avoiding a high-stakes confrontation over the constitutionality of the Voting Rights Act. (See the top 10 Supreme Court nomination battles.)

And in Ricci v. DeStefano, the closely watched affirmative-action case, the court was criticized by liberals — and praised by conservatives — for inventing a new legal standard to determine when cities can throw out promotion exams that have discriminatory effects on minority firefighters. Whether or not you like the decision, there's no question that the court was making policy, coming up with a pragmatic rule that Congress never passed on its own.

I would be curious to know just how many liberals like Rosen really feel this way. This is a remarkable admission. Conservatives, and especially those that consider themselves strict constructionists, have always suspected that when liberals claim the constitution is living and breathing what they really want is a legislator on the bench. Folks of all philosophies would like to see policies enacted that simply don't have enough electoral support. Some of those would like to see the courts enact those policies that the legislature can not. That's when we get into an area of judicial activism.

Rosen is, in my opinion, wrong both on a philosophical level and in the manner he justifies his philosophy. There are several reasons we don't want judges to legislate from the bench. First, if they legislate, then what do the legislators do? Ultimately, Judges' powers are limited by the limits they set on it themselves. Once a case reaches the Supreme Court there is no higher authority. Whatever the ruling, there is no other place to appeal. If judges take it upon themselves to make law, there is really no one to stop them. Supreme Court justices are appointed for life so they would not only be drunk on power but literally unstoppable.

Rosen's examples are dubious at best. Roberts was NOT making law but interpreting it. Some laws are very specific leaving little to no room for interpretation. Others are very vague leaving the courts to interpret the law given the specific set of facts in front of them. Frankly, it's beside the point. Even if there are examples of judges legislating from the bench with positive results, that ultimately proves nothing. Just because a judge is able to make good policy on some occasion doesn't mean that's what we want. I'm sure judges are perfectly capable of making policy and often good policy. That doesn't mean we ever want that to happen. That isn't their role.

What's amazing is how cavalierly Rosen dismisses the mandates of the Constitution. It apparently is of minor consequence that the Constitution is clear about which branch makes law and which interprets them. Rosen seems to feel that somethings are more important than Constitutional duties. The one good thing is that I believe that Rosen's belief system is shared by many on the left side of the political sphere. It's good that Rosen unmasked the view of many like him.


B. Johnson said...

The Article V majority can amend the Constitution at its pleasure. The problem is that the people no longer understand that the Constitution reflects majority will. Consequently, the people unthinkingly make themselves slaves to minority perversions of the Constitution by corrupt justices who find "hidden" meanings in the Constitution.

Anonymous said...

First and foremost, I don't know a single liberal who thinks Jeffrey Rosen or the The New Republic for which he writes is all.

The idea that you'd make Rosen, whom actual liberals have relentlessly panned for using anonymous sources to criticize Sotomayor (something liberals consider a trick out of the conservative playbook), as characteristic of the way most all liberals think is just reprehensible.

In any case, if you don't think what Roberts did in the circumstances constitutes activism or legislating from the bench, that's fine. I just don't think I've ever seen a liberal judge do much more than that, either. Legislating from the bench implies taking one law and making it out to say something totally different. You can't credibly say that happens as much as you think it does. And if you think it does, then perhaps you need to reconsider your belief that the Constitution is nothing more than a guarantor of right-wing civilization.

mike volpe said...

I guess you aren't familiar with a case known as Roe V Wade where a new right to abortion based on a dubious right to privacy was created. That is legislating from the bench.

Anonymous said...

You make it sound like the right to privacy was created out of thin air right then and there. Privacy over reproductive health started much earlier. Griswold v. Connecticut comes to mind.

And besides, if there wasn't a right to privacy, why did the Framers feel it important to state "The right of the people to be secure in their persons, houses, papers, and effects" when they created the 4th Amendment? What possible alternative definition makes more sense?

mike volpe said...

The right to privacy from unlawful searches not from killing a fetus. There's a huge difference. The right to privacy is NOT absolute and yet it was used to create a right to an abortion. If Roe V Wade was using another ruling then fine, the other ruling also has plenty to answer for in transforming our court into being far too activist.