Legislating from the Bench

The idea that judges should not "legislate" from the bench is a shibboleth on the Republican side of the aisle, and many Democratic legislators would agree that judges shouldn't trespass on their turf. In my opinion, this is an overblown issue in which hypocrisy content is extremely high. For one thing, in many cases judges have no option but to "legislate" from the bench, because Congress (or the states) have written laws that force judges to choose among differing interpretations.

First, even though Oliver Wendell Holmes once said that the Supreme Court could do without the power to declare Federal statutes unconstitutional, judicial review has been a key, if rarely used power of the judiciary. Suppose Congress passes a law that clearly violates the Constitution. More likely, Congress passes a law, some parts of which clearly violate the Constitution. The law comes up for review before the courts, probably because some individual has been penalized by the law, and has appealed to his constitutional rights. The courts find that some portions of the law are, indeed, unconstitutional. In effect, the courts have amended the law, a legislative act. But what's the alternative? The alternative would be the British situation, in which any act of Parliament is constitutional, because the unwritten constitution is largely a compilation of acts of Parliament.

Second, the law is often unclear. State legislatures and the Congress both write bills with lots of compromises, amendments, and cobbling together of sections drafted by different people. A bill comes into force which seems to require two contradictory things. Someone who finds that he cannot do both of these things sues, and the case comes into court. So a judge has to, in effect, amend the law in order to make sense of it. Judges are usually deferential to legislative intent, but if the intent is unclear, the judges have to reach a conclusion somehow.

Third, in some cases the legislators have deliberately left details of a law undefined, to be interpreted by the courts, or to be filled in by the executive. In these cases, the Congress has made the courts an associate in the legislative process. Congress give the President authority to fight a war in Iraq, for example, and the President says that he will use that authority to attack Burma. The courts may have to step in to say that the executive cannot construe the law in that manner.

These are just a few examples, more or less off the top of my head. I should point out that most of what courts of first instance do is to apply existing law (including precedent) to cases in which these questions do not arise. It is in the nature of the business that the cases that are appealed to higher courts are the ones in which lawyers see some chink in the solid wall of the law, and that those which rise to the Supreme Court are those on which there is disagreement among the lower courts. When Congress, in the various judiciary acts, authorized the appelate court system, it provided for courts whose job would be to legislate from the bench. So now they want to complain?