GoogleIt Mail IT Print IT PermaLinkLegislating From The Bench... It Doesn't Mean What You Think It Means
10:51:18 PM

In view of the Alito confirmation hearings that started today (full transcript), I think it's about time I finally write this post about the meaning of the phrase "legislating from the bench". It's a phrase we've been hearing a lot these past few months, mostly from President Bush and supporters of his nominees. It's a close relative of other phrases, like "activist judges" and "judicial restraint", and by analyzing it I hope to cast some light on all of them.

This is going to be a bit long...

The phrase "legislating from the bench" is always postioned as a negative, a pejorative, something to be avoided. It sounds, on it's face, like it refers to a usurpation. Here's a direct quote from President Bush, verifiable from the White House web site.

We stand for institutions like marriage and family, which are the foundations of society. We stand for a culture of life in which every person matters and every person counts. We stand for judges who strictly and faithfully interpret the law, instead of legislating from the bench.

The negative connotation is clear from the opposition of "faithfully" and "instead of", but I directly challenge the assertion that legislating from the bench is a negative. The phrase has become so loaded in common usage such that it seems that legislating from the bench is a wrong and harmful thing, but it is not. I assert that legislating from the bench is a normal part of our system of government and laws. It is not a usurpation at all..

The principal way that the phrase has become a loaded negative, I believe, is through deliberate exploitation of the fact that most people don't actually know what "legislating" means. Most people hear "legislating" and think it refers to something that is exclusively done by the legislature -- or in the case of US Federal law, by Congress. That's not what it means.

From Merriam Webster:

legislate: to perform the function of legislation; specifically : to make or enact laws

legislation: 1. the action of legislating; specifically : the exercise of the power and function of making rules (as laws) that have the force of authority by virtue of their promulgation by an official organ of a state or other organization 2. the enactments of a legislator or a legislative body

The secondary definition of "legislation" provides the source of the common misconception, that "legislating" is only done by elected legislators, but the primary defintion indicates that any "official organ" of government that makes rules as law that has force of authority is in fact "legislating". A court is an official organ of government tha tmakes ruls as law that have force of authority! That's part of the job description.

And the definition of "legislate" includes both to "make" and "enact" laws. This is not a simple matter of redundancy. There is a big difference between making law and enacting law. "Making law" is the general term for many different ways that laws come to be laws. "Enacting law" is the specific act of following the procedure of a legislative and executive bodies to formally pass a and sign bill. Cutting to the chase, "legislating" means "making law", and the definition is not limited to any one of the many ways in which laws are made.

"But Rich", you might be saying, "that's just wordplay. Everybody knows that what's really at issue is the fact that judges are making up law out of thin air, and they're not supposed to do that." If you're saying or thinking that, you are wrong -- and again it's because you do not know the true meaning of a word. In this case, the word is "law".

No, I'm not an attorney. Until shortly after my 20th birthday it was pretty likely that I was going to go in that direction, but I didn't. The fact that I had an absolutely miserable time in the one class I took that was "pre-law" played a part in that, but it wasn't decisive. There wasn't actually an official pre-law program and I took that one course, International Law, because of my interest in International Relations much more than because of my potential career interest (therefore the quotes around "pre-law"...) but it's fair to say that the vast majority of the kids in the class went on to law school, and it is also fair to say that the Professor taught the course in full recognition of that fact.

But I digress. I'm not an attorney, but I took enough away from that class to know that the first day topic of "what is law?" does not have a simplistic answer that equates to "the stuff that is written down by in Constitutions, bills, and ordinances," It's far more complex than that.

There are many kinds of law, and I'm not referring to Federal, State and local. I'm referring to laws that derive from different sources. One way of dividing forms of law is into statutory law and non-statutory law, but that's just one way of looking at it, and it's not the whole story. I'm not going to go into a full explanation, but this is first day Law 101: law doesn't just come from one authority. The rest of law school after day one expands on and clarifies that, in stultifying detail. At a minimum, in the US there is Constitutional law, treaty law, statutory law, common law (which might even distinguished from capitalized Common Law, referring more narrowly to the common law derived from British legal tradition), and judicial law.

What's that last one? "Judicial law"? That's what we're talking about! It's not an evil to be avoided. It's a normal part of our system. And why is that? Precisely because there are multiple sources of law, and they conflict with each other. Furthermore, none of those sources can be taken to be completely, unambiguously, or perfectly formed. Sources of law often conflict internally with themselves. and are often ambiguous. Let me give an example, taken from the US Constitution.

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

Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The ninth and tenth amdendments to the Constitution deal with rights and powers. Note the two disinct words. The text of these two amendments grant "rights" to the people, and "powers" to both the States and the people. No "rights" are granted to the States, and that's not just in these two amendments. Search the text of the Constitution at the above link for the word "right" and you will find that there is not a single mention, anywhere, of any "rights" of the States. Not one.

The question of "States Rights" has been for more than two centuries, and remains today, one of the central issues in American politics, and yet there is not one single "right" granted to the States anywhere in the Consitution's text! It is crystal clear from history and logic that "rights" and "powers" are two closely intertwined concepts, but they are clearly distinct enough that the Founding Fathers needed two separate amendments... with different effect.

The ninth amendment is unequivocal: the people retain a lot of "rights" not mentioned in the Constitution. I should say, actually, it's unequivocal but totally non-specific. The tenth amendment, however, is a strange beast. It reserves "powers" to the States, or the people. Emphasis on OR. Does the fact that the States are mentioned first serve as an indication of whether it is the States or the people who deserve precedence in figuring out who gets what power? Can you take the ninth amendment as an indication of the people's precedence even though it deals with that nebulously different question if "rights" instead of "powers"? The answer is this: the Constitution is either ambiguous in not specifying whether the States or the people take precedence in the 10th amendment, or it's inconsistent in listing States first in the tenth, but not at all in the ninth... and this is not a trivial point.

This is why there is judicial law -- law decided by courts. All the hard decisions, all the controversial decisions, all the decisions that one side or the other calls "legislating from the bench" arise from one simple fact: our elected law-makers, dating back to the Founding Fathers, have not given us unambiguous and consistent laws. There are conflicts between State and Federal law, between different Federal laws, between Federal laws and the Constituation, and between different parts of the Constitution. Passing more laws, and even passing Constitutional amendments, does not -- and never will -- solve this.

We, and our elected representatives in government are not omiscient, nor are we capable of evaluating and correcting every conflict and ambiguity in every source of law and for every context in which it might be applied. Our laws are imperfect because we are imperfect, and we can not just deal with the imperfections after the fact. We have to establish justice in the cases that arise while our imperfect, ambiguous, conflicting laws are still laws. Furthermore, we have to have that justice in force even when political considerations prevent us from actually resolving the problems in our imperfect, ambiguous and conflicting laws. This is the role of the Courts, and this is where "legislating from the bench" happens. This is where it is supposed to happen. This is where it has to happen. Our system of laws does not work without it!

I'll move toward the conclusion of this essay with an observation that seems a little bit flippant, but it is quite serious. "Legislating from the bench" is the check that is built into our system against certain types of "adjudicating from the legislature" or "adjudicating from the executive". Specifically, it is a check against the passing of a bill or imposition of an executive order that tries to clarify a contradiction between provisions of the Constitution, or which attempts to resolve a Consitutional ambiguity in a way that is contrary to judicial precedent. Our system provides a process for doing that through Constitutional amendment, and when the legislative or executive branch doesn't use that process the judicial must step in. It's their job to make the other branches follow the proper procedure, and uphold their precedents up until the point that an amendment overturns them. And in these terms, the most "activist" SCOTUS Justices in recent years, the ones who have done the most "legislating from the bench" based on the number of times they have voted to overturn laws passed by Congress that amounted to "adjudicating from the legislature"... are the conservatives Thomas, Scalia, and Rehnquist along with Kennedy who is hard to pin down as either conservative or liberal. In fact, Scalia is twice as likely to "legislate from the bench" as Breyer, and Kennedy and Scalia are even more likely..

So, now that you know the true meaning of "legislating from the bench", and that it is a normal part of our system of law and government because law comes from multiple sources, including the courts, and now that you know that "legislating from the bench" is the proper check on "adjudicating from the legislature/executive", you have the proper context to understand that when President Bush talks about how his nominees won't do it, he's the one playing word games. He's taking a phrase that sounds like it should be something bad, but isn't, and he's applying it only to cases where the outcome doesn't conform to his own ideas of what the law should have been. He's really saying "Judge Alito won't legislate from the bench, except when I want a conflict or ambiguity resoved to favor my own neo-conservative viewpoint."

Additional Info

What exactly does "legislating from the bench" mean?  Daniel J. Solve in "Concurring Opinions'.

legislating from the bench  Cass Sunstein in "University of Chicago Law School Faculty Blog".

a ritual stupidity  Don Herzog in Left2Right.

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Comments :v

1. R. J. Lesch01/10/2006 12:20:57 PM

Also: If "legislating from the bench" is wrong, then "legislating/adjudicating from the Oval Office" should also be frowned upon. Case in point: Bush's use of "bill-signing statements" to undermine legislative intent.

2. Bruce Perry01/10/2006 12:57:46 PM

Excellent post! Have you considered submitting it as an op-ed piece somewhere? I look forward to seeing some discussion on it.

With regard to the phrase "legislating from the bench", I almost always interpret it to mean that a judge has done something a conservative doesn't like. It is, in effect, an ad hominem attack. It skips over the discussion of the case at hand and attacks the judge as biased.

3. Chris Whisonant01/10/2006 03:00:22 PM

Well, this sounds like as good an answer as any:

SPECTER: How would you weigh that consideration on the woman’s right to choose?

ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It’s a fundamental part of our legal system.

And it’s the principle that courts in general should follow their past precedents. And it’s important for a variety of reasons. It’s important because it limits the power of the judiciary. It’s important because it protects reliance interests. And it’s important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.
It’s not an exorable command, but it is a general presumption that courts are going to follow prior precedents.

4. Rob McDonagh01/10/2006 06:39:33 PM

Stare decisis is absolutely at the heart of our (and every) legal system. However, if precedent alone were enough, well, the world would be a very simple place that we could just wrap up into a ball (and the Supreme Court, indeed most non-criminal courts, could take a permanent vacation). Unfortunately, new legal questions arise constantly, whether due to changing laws passed by the various legislative bodies or due to the exercise of the various executive powers or *gasp* due to judicial law.

While this post is much larger than the Alito confirmation hearings, I would like to point out that even though the lower courts are bound by the precedents established by the Supreme Court, the Supreme Court is not nearly as thoroughly bound. Yes, they are reluctant to overrule previous Courts. But they absolutely have the right, the power, and the obligation to do so where appropriate. So Alito's alleged reverence for precedent means much less than the lobbyists on the right would have us believe once he is on the highest court in the land.

As for 'legislating from the bench' my experience has been that the phrase is most often misused and abused when discussing Constitutional issues. There was an enormous amount of amusement among my legally sophisticated relatives (not me, but there are quite a few lawyers in the family) when the conservatives pretended that the Massachusetts Supreme Judicial Court "abused their power" when they ruled that banning gay marriage violated the Mass. Constitution. The lawyers in the clan would chuckle over dinner at this crazy idea that interpreting the state's Constitution could possibly be an abuse of power, when that is after all the entire purpose of the SJC. They would get absolutely hysterical over declarations that the SJC had "created law" for very much the reasons Richard gives above. And they would howl until tears came out of their eyes when someone quoted extremist neo-cons as claiming these "unelected judges" were destroying our system of government. After all, who among these fools doesn't know that the same judges are the very foundation of our government? And despite the fact that this orgy of amusement took place in liberal Massachusetts, 2/3 (4/6, before reducing the fraction) of the lawyers in question were Republicans who generally didn't like the *result* but found the process perfectly, boringly ordinary.

The truly appalling thing is that 90% of US citizens do not understand our system of government, and they are thus easy targets for this sort of cynically manipulative slime. Time to bring back the Civics classes in high school, methinks, preferably with a federally mandated curriculum so we don't get every Tom, Dick, and Moron making up their own rules about the US government...

5. Alan Bell01/11/2006 07:27:29 AM

It is interesting to observe the process from afar. In the UK our supreme court is currently a bunch of old duffers from the House of Lords (which your house of Congress is based on) who used to be judges, they are called the law lords. I don't know how many there are in total, but I think normally 5 of the pool will sit in judgement on a particular case. It is actually a bit more wierd and complicated than that because there are some cases which go to other "supreme" courts, but generally the law lords are equivalent to your SCOTUS. We are going to have a separate supreme court in a few years so things might change. My point is that historically your SCOTUS judges were a subset of the second chamber. The second chamber has powers to amend and delay or block bad legislation or send it back to the first chamber, but they can't write new primary legislation. It seems to me that the historical relationship between the supreme court and the upper chamber backs up what you are saying about the appropriate use of their powers of interpretation of the law.
Over in the UK we have an oversupply of venerable old duffers, perhaps you would like one of ours?

6. R. J. Lesch01/11/2006 09:54:18 AM

@5 -- actually, the problem over here is that the old duffers, who had some sense once, are being replaced by younger, scarier duffers. If we could keep some of our old duffers around for a couple more years ...

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