Legislating from the bench is a dubious phrase at best

Judge John E. Jones

Judge John E. Jones, pictured, was accused of legislating from the bench, among other things, but few can define what that really means. Image from Wikimedia Commons.

The recent strike down of the health care reform bill has reintroduced the phrase “legislating from the bench” into the national consciousness. It isn’t the first time, and the phrase was popularized in recent years by President George W. Bush. However, the term may not actually mean very much.

Not much to go on with ‘legislating from the bench’

The term “legislating from the bench,” along with the phrase, “judicial activism,” can get tossed around in the press. Political pundits on both sides have used it. This language is usually invoked when people think a judge has taken a case and then stretched or ignored laws to rule in the manner in which that judge sees fit. For instance, the term is being thrown around by some in conjunction with the recent ruling by Judge Henry Hudson that the health care reform laws are unconstitutional. The same rhetoric was also used when federal judge Vaughn Walker overturned Prop 8 in California. Cries of “judicial activism” were leveled at the judge who decided the Terry Schiavo case, George Greer, and judge John E. Jones, who decided Kitzmiller v. Dover Area School District.

Little empirical meaning

There is little consensus on what constitutes “judicial activism” or “legislating from the bench.” It has been suggested before that it means some people did not like a court decision, not necessarily that it was wrong. For instance, Bush v. Gore in 2000 could easily be seen as judicial activism on the part of the Supreme Court, which conservatives lauded. Roe v. Wade is certainly considered legislating from the bench by some, and others don’t think so at all.

Genius of the Constitution

The genius of the U.S. Constitution, among other things like the system of checks and balances, is that there is room to interpret. Not everyone gets the same meaning from the same sentence. Ancient law, like the Twelve Tables of Rome, the Code of Hammurabi, or Anglo-Saxon or the Lombard laws doesn’t leave a lot to interpretation the way American constitutional law does. Not every decision is going to go the way one or the other political demographic wants it to.

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