Creating precedent for the law
The term “legislating from the bench” is frequently used but rarely explained. In the 2008 presidential debates Sen. John McCain (R-Ariz.) promised he would not appoint judges who legislate from the bench. But as Bruce Peabody, author of Legislating from the Bench, a Definition and a Defense, told the HPR, “I don’t think we can know what he means … it’s hard to get much intellectual traction from the way politicians use the term.” “Legislating from the bench” implies a justice system comprised of two types of judges: those who merely interpret law and those with political agendas who create law.
This distinction, however, covers up the fact that vague language and political and societal change necessitate that law be created through legal interpretation. A.E. Dick Howard, professor of Constitutional law at the University of Virginia, told the HPR that ambiguous phrases found in the Constitution such as “due process of law, equal protection of law, and cruel and unusual punishment” require interpretation to be applied. The interpretations of these phrases must change as unforeseeable circumstances arise, making the courts an avenue for interpretation to substantially affect law. Accordingly, the phrase “legislating from the bench” is at best misleading, and analysis of its historical application reveals its necessity.
Not a Liberal Habit
As Sen. McCain’s comment indicates, popular belief suggests only liberals are guilty of supporting politically active judges. However, both Democrats and Republicans have accused judges of over-stepping their boundaries in the past. As Howard explained, “In the 1930s, during the New Deal, it was liberals complaining that the courts were making social and economic judgments that the legislature should make.” Later, conservatives took up the cry as the infamously liberal Warren Court took on similar political activism; it is this court that is remembered by conservatives and from whom many of the negative connotations of “legislating from the bench” are derived. More recently, it was the conservative Rehnquist court that, according to Howard, “struck down acts of Congress at a greater rate than did the more liberal Warren Court.” Liberals are consequently not the only judges who have a habit of correcting the law.
Though the Warren Court that decided Brown v. the Board of Education and Griswold v. Connecticut among other landmark decisions was controversial at the time, many of their decisions actually represented popular American beliefs. After World War II, there was a renewed sense of justice in the country, exemplified in lobbying for the rights of minorities and women. The courts did not seek cases involving rights, instead citizens brought them forward. As Bill Stuntz, Henry J. Friendly professor at Harvard Law School told the HPR, “The first time the Court decided to do battle with segregation and with Jim Crow was when public opinion seemed to be swinging against Jim Crow.” When one looks back at the history of the civil rights movement, it becomes clear how necessary the courts were. African Americans had no one to represent them in the legislative branch precisely because they were barred from voting, so they had to appeal to the courts.
Courts Must Create Precedent
In most cases, the courts bend their knee to precedent whenever possible. However, in order to follow precedent, precedent must first be set. This is the lot that often falls to the Supreme Court. Stuntz explained that “the question isn’t whether to make law. It’s what law should be made.” In a bipartisan country, there will always be dissent considering what is right, moral, or just. It is up to the American people to bring cases before the courts that will force the courts to evaluate questionable laws. Recently, in D.C. v. Heller, the courts were asked to reevaluate the Second Amendment.
Like all cases concerning Constitutional right, precedent was considered. But as Howard explained, ultimately “a majority of the Court held that the Second Amendment to the Constitution creates an individual right to bear arms.” This is not an example of legislating from the bench, but rather of a Constitutional law that needed and will continue to need clarification. In order for precedent to be set and for questionable laws to be challenged, the courts must be involved in law making.