What Exactly Does “Legislating from the Bench” Mean?

judge2a.jpgIn the discussions surrounding the recent Supreme Court appointments, it seems that the big judicial no-no is to “legislate from the bench.” Orin Kerr has an interesting post about the ambiguity of this phrase as used by the White House. What exactly does “legislating from the bench” mean?

Currently, the phrase “legislating from the bench” means little more than “I know it when I see it.” Despite being thrown about rather vaguely and carelessly, the notion of not legislating from the bench appears to be based on a particular approach toward constitutional interpretation, one that I will call the “principled conservative process-based approach.” By “process-based,” I am referring to conservatives who seek to articulate an approach toward judging–a method–not just a set of results they desire for particular cases.

So what is the method? As I understand it, the method involves a combination of at least three elements: (1) a reluctance to stray beyond the constitutional text or a commitment to interpreting the Constitution according to original intent or a combination of both; (2) a posture of judicial deference toward the Legislative and Executive Branches, as well as other government institutions; (3) a respect for precedent and a Burkean view toward making radical changes in the law.

Far too often, the conservative process-based approach is thought and spoken about with Roe v. Wade in mind. But I wonder what applying the conservative process-based approach would have meant for some of the other famous Supreme Court cases of the past century. Consider the following cases:

· Korematsu v. United States (1944) – the Court upheld the Japanese Internment under an Equal Protection Clause challenge.   The Court’s decision was based upon

Hirabayashi v. United States (1943), where the Court employed judicial deference toward the government’s judgments about the danger posed by Japanese-Americans and the necessity of the Internment. 

· Brown v. Board of Education (1954) – the Court held that separate but equal school facilities violated the Equal Protection Clause.  This decision overturned Plessy v. Ferguson (1896), a precedent of nearly 60 years.  It had a radical

effect on the law in many states. 

· Mapp v. Ohio (1961) – held that evidence seized in violation of the Fourth Amendment shall be excluded from evidence at trial.  The “exclusionary rule,” originally devised by the Court in Weeks v. United States (1914), is now the primary way that

the Fourth Amendment is enforced.  It is not mentioned at all in the text of the Fourth Amendment.

· New York Times v. Sullivan (1964) – the Court required that public officials suing others for defamation must prove actual malice – a requirement that was not previously in the defamation torts.  This radically altered the defamation torts of libel and slander which had existed for centuries. 

· Griswold v. Connecticut (1965) – the Court struck down a law restricting contraceptives as violating the constitutional “right to privacy.”  The right to privacy was not explicitly mentioned in the text of the Constitution, but the Court held that it could be inferred by reading several of the rights in the Bill of Rights in combination. 

· Miranda v. Arizona (1966) – the Court held that the Fifth Amendment requires that a defendant be informed of his rights before being subjected to custodial interrogation.  The Fifth Amendment does not explicitly say this; the Court held that the clause prohibiting being forced to incriminate oneself required that defendants be warned about waiving their rights before being questioned.

· Katz v. United States (1967)  – the Court held that the Fourth Amendment protected against electronic eavesdropping even though it was carried out without a physical trespass into the home, dramatically reversing Olmstead v. United States (1928), a case decided nearly 40 years before.

· New York Times v. United States (1971) – the Court held that the government could not impose a prior restraint upon the publication of the Pentagon Papers.  The Court refused to defer to the government’s claim that the release of the Pentagon Papers would jeopardize national security.

What would a conservative process-based approach have meant for these cases?

Of course, the conservative process-based approach might not do anything to unsettle these opinions now based on its view about precedent. In this regard, the approach’s respect for precedent would dominate over the other two elements.

But my thought experiment is to imagine how a Supreme Court justice with a conservative process-based philosophy would have decided the above cases at the time they occurred, not how they would resolve the issues today with the precedents already on the books.

Would the justice have deferred to the government in Korematsu as the Court did? Would the justice also have deferred in the Pentagon Papers case unlike what the Court did? Adhered to precedent in Brown and Katz? Adhered to text in Griswold? Been reluctant to radically alter an ancient tort in New York Times v. Sullivan? Been reluctant to craft the exclusionary rule in Weeks and Mapp and reluctant to create the rule in Miranda? In these cases, would the approach have led to better constitutional law?

Anyway, I would be interested in a more concrete discussion of how the conservative process-based approach toward constitutional interpretation would have worked as an alternative to the interpretative approaches that were actually employed in the cases discussed above.

You may also like...

10 Responses

  1. Kaimi says:

    How about Mahon v. Pennsylvania Coal — a case that greatly expanded the rights of private property owners, but was almost certainly an example of legislating from the bench.

  2. Mike says:

    Generally people say the court “legislates from the bench” when it enacts* some policy that a majority of Americans oppose. Let’s say, e.g., that the holding of those cases you mention above went on a ballot. Americans were asked: “Should evidence obtained in violation of a suspect’s Fourth Amendment rights be inadmissible against him at trial?” I’m pretty sure how a majority of Americans would answer that question. (Which doesn’t make the answer “right,” of course.)

    My suspicion is that every case that is said to be “politics, not law,” or “judicial legislation” is a case where the court enacted something that a majority of Americans would not have ratified at the ballot box. So, in a sense, I’m not sure it’s accurate to say that judicial legislation is something we only know when we see it. If we took a poll before a case was handed down to determine how a majority of American’s felt, I think that would give us a good proxy to whether the court’s holding would be called judicial legislation. The more Americans disagree would be positively correllated with a case later being known as judicial legislation.

    *I realize courts don’t “enact” anything. If someone can think of a better word, I’d love to hear it.

  3. Simon says:

    If legislating from the bench is another way of saying judicial activism, the definition I previously offered (see Less nebulous than you’d think, 9/23/05) was that “a decision is an act of judicial activism if it uses the judicial power to strike down a law that is not unconstitutional, or to uphold a law which is unconstitutional…[T]he conflation of “action” with “activism” is false; the court cannot be activist simply by adhering to the constitution. By contrast, it cannot be anything other than activist if it defers to the legislature by creating legislative authority where none existed. One can be activist not only by taking action where none is required, but by refusing to take action when it IS required.”

    Seen this way, Brown is clearly not an activist decision, even though it lead to great upheaval. It should be upheld because, even if the reasoning was spurious, the result was correct and even required under the equal protection clause, as Scalia (see Rutan, 497 U.S. 62, 95-96 n1) and Bork (see The Tempting of America) et al have pointed out. Griswold, on the other hand, was obviously activist; although it created no great waves at the time (to my knowledge, at least), it remains an activist judgement because it invented a new constitutional right from thin air.

    I don’t think most originalists (or conservatives) would be willing to go so far as Scalia indicates that Thomas does, and disavow stare decisis, period. Precedent is fine, as is doctrine, but precedent cannot lead to a result which cannot be reconciled against the text; it cannot change the meaning, which is why precedent must always follow (and where necessary yield to) the authoritative text, whether that text be a statute or the Constitution.


  4. Is There One Best Method of Constitutional Interpretation?

    Although the Supreme Court feels some pressure for consistency via precedent, it doesn’t seem to strive at all for consistency in interpretive approach. Thus, the Court’s opinions are all over the map when it comes to the method of constitutional…

  5. Mike — You’re basically saying that “legislating from the bench” means deciding something that people don’t agree with. The phrase “legislating from the bench” has little meaning in my opinion. I don’t think it advances the debate at all; if anything, it obfuscates. I wish it were dropped and folks explored more substantively the pros and cons of the conservative process-based approach toward constitutional adjudication I spoke about in this post. Although the post title was about the meaning of the phrase “legislating from the bench,” the bulk of my post was asking about how more narrow readings of the Constutiton, more deference, and more adherence to precedent would play out in decisions other than Roe v. Wade.

    Simon — your move to eliminate the distinction between striking down legislation versus upholding it is fine, but your definition of activism basically seems to boil down to anytime the Court interprets the Constitution in a way you believe is wrong — whether that means upholding a law it shouldn’t uphold or striking down a law it shouldn’t strike down. If this is the definition, then judicial activism becomes nothing more than a way of saying that the Court got it wrong.

    As to your argument on text, the problem is that the text of the Constitution can be notoriously vague in parts. And there are parts where the text doesn’t seem to match how it has been interpreted. Consider the 11th Amendment. It explicitly says that people can’t sue “another State” but it never says that people can’t sue their own state. But the Court has read it to say that people can’t sue their own states too. So much for following text. And Bruce Ackerman in We The People Vol. I has a very interesting argument that if we were true textualists, the 13th, 14th, and 15th Amendments were not ratified according to the proper procedures set forth in the constitutional text. What do we do there? Where is the administrative state mentioned in the Constitution?

    The problem, in short, is that we’ve departed so far from the text that I don’t think it is plausible to go back. And that’s why precedent is the only thing giving any stability to the system.

  6. Simon says:


    I’ll try to answer all those points at some level, in two posts, starting with your point about the eleventh amendment (mainly because my intention to write some “quick initial thoughts” has sprawled into something larger and I need to catch my breath!).

    I haven’t really studied the eleventh amendment in any depth (that having been said, it is relieving to read that “Eleventh Amendment jurisprudence has become over the years esoteric and abstruse and the decisions inconsistent“, Killian & Costello, The Constitution: Analysis & Interpretation, 1992 Ed., at p.1521, so evidently my greenness can compare not entirely unfavorably with the acknowledged incoherency of formal doctrine), so at risk of embarassing myself…

    It seems very tenuous to construe the Eleventh Amendment, explicitly against its own terms, so as to preclude suits against a state by their own citizens.

    The amendment was adopted in direct response to Chisholm v. Georgia, 2 U.S. 419 (1792). Accord discussion in Alden v. Maine, 527 U.S. 706 (1999), part I(b). Subsequent cases prior to the civil war tended to read the amendment as its text suggested it should be; see, e.g., Cohens v. Virginia 19 U.S. 264 (1821). The problem, it seems, sets in after the civil war, exemplified by Hans v. Louisiana, 134 U.S. 1 (1890) and Ex parte New York, 256 U.S. 490 (1921). These latter cases seem to stand for precisely the propositions offered by theorists like Jack Balkin and Lawrence Tribe, which I find to be highly suspect, namely the “Calabresi Fallacy” (see Steven G. Calabresi, The Tradition of the Written Constitution: Text, Precedent, and Burke at p.4) (noting that “our constitutional tradition, unlike [that of common-law jurisdictions such as Britain], is one where we venerate the document above all else” and warning against “mistak[ing] the American Constitution for the British Constitution where there are islands of text in a sea of tradition, instead of the other way around“). That proposition was offered in explicit terms in New York, supra, in which the court held that what was important was not what the people actually agreed to, in ratifying the document, but rather, a more esoteric standard of broad principles “of which the Amendment is but an exemplification” (id. at 497).

    Such an interpretation offers numerous problems instantly. It essentially argues that the narrowness (or, more positively, specificity) of the Eleventh Amendment is but a drafting error. But in Chisholm, Chisholm was not a citizen of Georgia; the case which provoked the Eleventh Amendment involved precisely the problem that the Eleventh Amendment’s text resolves:

    The Amendment proposed by Congress and ratified by the States was directed specifically toward overturning the result in Chisholm and preventing suits against States by citizens of other States or by citizens or subjects of foreign jurisdictions. It did not, as other possible versions of the Amendment would have done, altogether bar suits against States in the federal courts.”

    (Killian & Costello, supra, at p.1522)

    Second, I do not agree that doctrinal discussion can overrule the explicit text of the Constitution or its amendments. It can inform – but not supersede. I have no objection to doctrine filling the gaps in the Constitution; it is, after all, “a constitution that we are expounding.” I have no objection, therefore, and for example, to Weeks v. U.S., 232 U.S. 383 (1914) (and even Mapp v. Ohio, 367 U.S. 643, 1961), where the Court created binding doctrine which is endemic to giving teeth to the safeguards of the Constitution. Nor do I have any objection to the use of historical practise and structural inference to make clear constitutional provisions that are unclear. But what I am unwilling to do is to acknowledge the theory that says the Constitution is no more than a set of abstract principles, from which the text is but a distraction, which can be abused to meet the result desired by a Judge or which might temporarily be deemed expedient. Justice Kennedy spoke recently of the difference between the Constitution with a capital “C” and the constitution with a lower-case “c”; Kennedy’s theory is that the latter is composed of the combined precedents, doctrines and traditions of the American courts and people, and that it is no less binding than the big-C Constitution. That is not the purpose of having a Constitution, it seems to me. While I don’t dispute Kennedy’s belief that there is a small-C constitution, I cannot agree with Kennedy – or with the court’s recent jurisprudence – that this small-c constitution can supercede the terms of the big-C Constitution by fiat of Court ruling. This would be nothing less than a judicial usurpation.

    If the terms of the Eleventh Amendment were unclear, I might see wisdom in the inquiry into the small-c constitution and the theoretical underpinnings of the amendment (although I feel such an inquiry would still not reach the unnatural result that is being grafted to it in modern jurisprudence, as discussed above) to extrapolate a broader meaning giving effect to the amendment. But the Eleventh Amendment is not unclear; it says, with admirable clarity and a complete absence of ambiguity or uncertainty, that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” If this provision can be re-interpreted such that its actual text is subserviant to the speculated intentions or doctrinal theories of the Framers, why cannot those clauses of the Constitution which deal with the minimum age for Representatives, Senators and Presidents be discarded or “updated” by courts, in light of the expanding lifespan of the American population? Why not assume that when the framers spoke of suits valued at $20 or more in the Seventh Amendment, they meant merely to express an abstract average amount of weatlth, and that the $20 value written into that amendment should be interpreted to mean suits that are worth in today’s money what $20 was worth in 1791 money? Why cannot the grant of power over interstate commerce be re-interpreted to grant the Federal Government the general police power which the framers so assiduously denied it, by means of the enumeration of its powers?

    In Cohens, supra, Chief Justice Marshall wrote:

    [A] defendant who removes a judgment rendered against him by a State court into this Court for the purpose of reexamining the question…does not commence or prosecute a suit against the State…[Even] [i]f this writ of error be a suit in the sense of the Eleventh Amendment, it is not a suit commenced or prosecuted “by a citizen of another State, or by a citizen or subject of any foreign State.” It is not then within the [Eleventh] Amendment

    (id. at p.412) (Emphasis added). Unless I’m misunderstanding Marshall, he’s arguing here precisely that the eleventh amendment only reaches actions by individuals against states other than their own. Marshall’s argument seems far better tethered to the text of the eleventh amendment, rather than the more recent line of cases involving sovereign immunity.

    It’s true that “for over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States was not contemplated by the Constitution when establishing the judicial power of the United States.” (Seminole Tribe v. Florida, 517 U.S. 44, quoting in part Hans, supra) (internal quotation marks and citations ommited). I am unconvinced that such power was uncontemplated, not least because it is unclear in what other venue but the Federal courts a person with appropriate standing and a live controversey involving a state’s violation of, say, the contracts clause, might bring suit against a state, or against whom else they might bring it; I don’t accept that every result that the framers did not explicitly predict that the text might facilitate is prima facie unconstitutional. In any instance, I do not think that this is reason enough for continuing to re-affirm Hans (cf. Welch v. Texas Highways Dept., 483 U.S. 468 at pp.495-6, Scalia, J., concurring). Perhaps sovereign immunity isa good idea, and perhaps it can be grounded elsewhere in the Cosntitution, but the Eleventh Amendment, by its own terms, forbids such an atextual, unoriginalist and ahistoric construction.

  7. Simon says:

    The other half of my answer is:

    your definition of activism basically seems to boil down to anytime the Court interprets the Constitution in a way you believe is wrong — whether that means upholding a law it shouldn’t uphold or striking down a law it shouldn’t strike down. If this is the definition, then judicial activism becomes nothing more than a way of saying that the Court got it wrong.

    I don’t think it amounts to saying that judicial activism is no more than an expression of a wrong decision. Courts can and do make wrong decisions for the right reasons (I have, and will continue to, disagree with Scalia on various cases; most recently, I think his result in Raich is wrong, but it’s not judicial activism), but it only becomes activism, it seems to me, if they are wilfully disregarding the result mandated by the text (and, often, applicable precedents) to reach a given result.

    Regarding the operation of the 13th, 14th, and 15th Amendments, I haven’t read Ackerman’s thesis, but I’ve read various scattered arguments about the Civil War amendments and how they supposedly have this problem and that problem with ratification. Most of them seem to center around the premise that the amendments were not ratified by the requisite number of states, but since there are almost no states which have not now ratified those amendments, I think we have to conclude that while there may be some legitimate inquiry into when they legitimately went into operation, they certainly are in operation now. During his confirmation hearings, Scalia noted that “at some level…government is a practical enterprise, and some things, when they’re done, [even if they’re wrong] they’re done, and you move on.” I think that’s good advice regarding Bush and I think it’s good advice regarding the Civil War amendments. I’ll try to read Ackerman’s thesis sometime soon, though. These things are always interesting, even if moot.

    The principal constitutional problem with the administrative state is the nondelegation clause; David Schoenbrod has an interesting book on this, but I’m really not sufficiently conversant with the arguments to offer much to that debate.

  8. Ron Ray says:

    My question concerns more the practice of the court creating a law rather than reviewing laws passed by congress.For example,the Supreme Court has ruled it is unconstitutional for the Ten Commandments to be displayed in courthouses around the country.Stating the clause “Seperation of Church and State”which is not found in the Constitution.As far as I know there has never been a law proposed by Congress requiring the Commandments be displayed.I am researching the practice of “Legislating from the Bench” for a paper in my Government class and would like some clarification on instances like this where the Court is not reviewing a law but actually creating one.

  9. Jeremy Mullen says:

    “Legislating from the bench” may have a legitimate definition which I think has been well covered in the above commentary; however, the reality these days is that it means anything the courts decide that George W. Bush doesn’t like or otherwise agree with. I notice it mentions the phrase being “thrown about rather vaguely and carelessly” and thats the ultimate truth behind Bush’s whole presidency, careless.

  10. RichardB. says:

    A Classic of Legislating From the Bench.
    Re: What Happens to a Whistle Blower when the government is a Co-conspirator to witness intimidations, bribery, and racketeering et seq. A Classic of Legislating from the Bench.
    Since 1986, I have reported to the Justice Department how Tupperware (TW) Home Parties, a div. of Dart Industries Inc., violated franchise and racketeering laws in the United States. I was titled a whistle blower by the FTC without any protection.1/2/. See the Wall St. Jr. 11/14/88 PBC1. This ended Dart’s racketeering in the United States./3.
    I. UNDISPUTED FACTS: In 1986, Dart-(TW) officials offered me a $200,000 bribe not to go to the Justice Department about Dart- Tupperware’s (TW’s) racketeering etc.
    1. By 1986-87, Dart officials threatened to bankrupt me as my exclusive accountant.
    2. By 1988, the FTC’s inquiry found how TW’s Distributors Accounting Service (DAS)was the accountant for the TW distributor’s (billion dollars) sales, without any audits?
    3. By 1988-89, an FBI and IRS agent tipped me off has to how TW’s DAS was robbing the distributor’s accounts in the US (worldwide) without any work sheets or audits.
    4. By 1989, in Dart v. Brayall, FBI and IRS agents were in the courtroom (postponed).
    5. By 1989, the U. S. Attorney told me to lay low for a grand jury. Then he disappeared.
    6 By 1989, the FTC and Dart’s attorneys knew that if the distributors witnessed or testified, TW would call their debts due and discontinue the exclusive products, etc.
    7. By 1989, the FTC and Dart’s attorneys knew that TW’s DAS robbed $279,000 out of my accounts (over $10 million dollars in sales) in order to bankrupt me as threatened.
    8. By 1989, the FTC was told by the President Bush to shut down the investigation for Dart (Sr.) funded the Nixon, Reagan-Bush elections with PAC-slush-soft-money.
    9. By 1989, I was bankrupted as Dart had threatened. Brayall CA 89-13003 Bankr.Ct.
    10. By 1990, I was to testify before Congress (LaFalce-SBC). See Title 18 USC § 1515.
    11. By 1991, before I could testify before Congress, Dart’s attorneys got a corrupt judge to dismiss my discharged bankruptcy with a false $500,000 settlement to the estate.
    12. By 1988, no law firm would represent the Brayalls because of the political corruption. 13. By 1994, Dart filed a brief in 989 F.2nd 484 (1st Cir.) cert. denied. 520 US 1123 U.S. Supreme Court: Whether the petitioners have failed to raise enduring or significance warranting the denial of a writ of certiorari where here, the petition is nothing more then an improper and unfounded attack on all the lower court judges (e.g. “claiming they made up false facts to support their false judgments”
    has an ongoing conspiracy to suppress the identity of the accountant)?
    14. By 1998, after 50 lawyers, over 40 courts, over 70 judges, just to ask 4 words: “WHO WAS THE ACCOUNTANT?” 15. Dart admits all the lower court judges refused to make a finding of fact for a genuine issue of material fact: The accounting, accountant or accountability?
    16. The Justice Dept’s letter dated 11/13/09: In the letter it doesn’t identify who was the accountant? It doesn’t mention that 34 federal judges and agents were served for co-conspiracy to racketeering. See Brayall v. United States et al. 94-1165NG. (3) It’s not in print for the public to cover up the link between the government and Justin W. Dart Sr.
    II. CONCLUSION: Since 1987, I am a disabled veteran, a whistler blower, an indigent, a pro se litigant, plead the above to the judges and the government. Dart and Darts’ attorneys conspired to rob the Brayall’s accounts in order: (1) to stop the Brayalls from posting a bond for an Injunction, stay in business, pay the attorney and avoid bankruptcy as Dart-TW threatened. (2) When bankruptcy didn’t work, Dart had corrupt judges dismiss the bankruptcy, state claims, federal claims while suppressing the accounting in order to cover up for the robbery and Dart’s racketeering. (3) Dart-TW used the Brayalls as an example for any witnesses or victims of Dart-TW’s racketeering. (4) The judges acted in concert with the lower court erroneous and prejudicial decisions.
    III. SUMMARY: The above protected a special interest or corrupt campaign money through a conspiracy of judicial waste and fraud upon the American Public. Thousands were denied their right to redress, equality or due process of law. The above was not done in the interest of justice or for the American Public. See A Refusal to Make a Findings of Fact; C.J.S. Appeal & Error § 783; West’s Digest §1023 (cases cited).
    IV. RELIEF: The Justice Department can settle with those who have lost their civil and constitutional rights. Let the truth be known to all. Sincerely Yours,

    1/.After the Wall St. Jr. article the stock dropped from $53 to $8… later went back up to $50 and split over 10 times. What a pay off? A 1000 shares at $8 = $8M. See The Tupperware Way case study (Harvard).
    2/See Kim Fein, Invisible Hands: Fortune 500 firms vastly increased their lobbying efforts in Washington by 80% …by 1980 and poured money into the Political systems. Justin Dart, CEO of Calif. Dart Ind., and a major financial backer of Ronald Reagan… early champion of corporate political action committees. “I don’t advocate that business buy a legislator,” he said in 1978. “Rhetoric is a very fine thing; a little money to go with the rhetoric is better. They listen better.” Dart’s PAC money has been inside the beltway for decades (per NCIS). Dart was a trustee to the Nixon Foundation. The Public Citizen: “Political money is easy to hide if you start laundering money through one corporation after another.” TW?
    3/In 1986, Tupperware (TW) was a multi level sales company consisting of over 100,000 dealers,
    10,000 managers, 400 distributors and sales of over a $Billion dollars. (1) TW has 12 Reg. Vice Presidents who over see the distributors. (2) If there is an opening for a distributorship, TW will pick from its top 40 competing managers nationwide. (3) The new distributors are secretively defrauded with fraudulent earnings by a TW Reg. Vice Pres. (4) The new distributors have to prove they want a Distributorship, so they will quit their jobs, sell their homes and give the proceeds to TW to become a distributor. (5) TW’s Distributors Accounting Service (DAS) will set up all the accounting for the new distributors. (6) New distributors have to manage a warehouse and sales force. (7) Now if anyone complains or doesn’t pay TW bills within 21 days, TW will cease supply and bankrupt the distributors. (8) A new distributorship costs about $250,000. (9) TW can choice not to resell the distributorship. (10) TW agreed to not give the indebted distributors, who were discontinued, an IRS 1099 in exchange for the distributor’s silence. See Title 31 USC § 5311-5324 failure to report monetary transactions. See fraud involving Bankruptcy. Title 18 USC § 1961(D); Obstruction of proceedings Violates Title 18 USC § 241, 371. 1515 conspiracy etc.