6 ms·

> legislating from the bench The most effective deterrent to "legislating from the bench" is to recall those Justices who did the legislating. Neither party w

> legislating from the bench The most effective deterrent to "legislating from the bench" is to recall those Justices who did the legislating. Neither party will do this, though—enacting reforms through the courts is far more efficient than passing difficult legislation through the House, Senate, and the Presidency (all of which can anger voters). Much better to let the courts do it, and give brave speeches to the media about "judicial overreach" when required to appease voters. > Waiting on the courts to get around to it will not be fast enough, or may never come. The current situation is working well for everyone with the power to change it (see above).

mjburgess 6y ago
In a common law system the role of the judiciary is to "legislate from the bench". I've never understood this peculiarly American objection.
- deleted 6y ago
  [deleted]
- fennecfoxen 6y ago
  America's Constitution was designed from inception to have strict separations of responsibilities among the legislative, executive, and judicial branches, such that they must work together to exercise power. This is meant to prevent any one individual or a party from becoming too powerful and thus endangering liberty. When they are not working together, they are meant to be powerless. Legislative power in particular was meant to be wielded by Congresspersons directly accountable to their constituents. Judges as legislators violate this separation, undermining not only key protections on democratic integrity, but the legitimacy of the whole scheme, through its avoidance of that direct democratic accountability. Note that excessive delegation from the legislature to the executive branch through agencies with rule-making power is also a separations-of-power concern, and there is special law around the procedures by which executive agency rule-making may take place. Another case is executive power being wielded by Congress: Seila Law LLC v. Consumer Financial Protection Bureau, argued this March and not yet decided, took on the problem that the head of the CFPB was not accountable to the President.
  - mjburgess 6y ago
    In practice, there is no coherent "separation of power". Power is not some multivalent thing which can be exercised differently by different institutions. Power here is the ability of one group to direct/constrain the actions of another.. the judiciary, the executive and the legislature all exercise the same power. The only thing "separation" achieves is a system of mutual antagonism which functions (poorly) as a system of accountability. Here, congress at any point can redress "legislating from the bench" (ie., establishing legal precedent) by passing new law. If the judiciary ignores this law, then they can be removed from office. I cannot see any circumstance here where the legislature has issues new law in redress for a judicial ruling and then the judiciary has gone on to ignore it. What we're talking about here is when judges have simply "made up rules" where the law fails to provide answers. that is the role of the judiciary in a common law system! It's what provides for reasonable standards of individual freedom which adapt to the age. rather than havign everyone legislataed by an infinite number of rules est. in 1701
    - fennecfoxen 6y ago
      You say, "that is the role of the judiciary in a common law system!" but America is primarily a Constitutional-law system, and only secondarily a common-law system. We have laws (the Constitution) describing what the judicial branch is meant to do, and what you describe here as your ideal is at least partially at odds with what they say. It appears you are also a skeptic of the principle of Separation of Powers to begin with. You are, of course, not asked to accept that this is ideal. I will, however, ask that you accept that this structure was designed and codified into law to uphold that principle, and this is often at the root of (principled) objections when things are done your preferred way. This is a better place to start a conversation, rather than of celebrating your failure to understand (which is meant to imply that something does not make sense, but really says more about your own understanding.) Imagine an American complaining: "Parliament is so confusing! What is all this drama about 'forming a government' and coalitions? Why can't they just elect a President directly?" The American may or may not have a meaningful point, but if they do have a point, this point is rather ill-served by the venue and the manner in which it is raised. The way in which you raise your objections here is similar.
- redler 6y ago
  Judges should adjudicate from the bench -- decide matters in dispute. To "legislate from the bench" would be judges creating laws -- the province of the legislative branch, not the judiciary. It's certainly true there's a blurry space there, and when courts make decisions that may be interpreted as the equivalent of manifesting new law, you'll hear complaints about "legislating from the bench".
  - erichocean 6y ago
    > It's certainly true there's a blurry space there It's trivial to determine if the court has "legislated from the bench" though: do parties unrelated to the lawsuit in question immediately, after the decision, have to behave substantially differently? Do extremely large numbers of people have to behave substantially differently after the decision? If they do, that's "legislating from the bench." That's literally the test. When they don't, a decision only affects the people in the suit and similar situations going forward (precedent). That's just the normal, everyday action of the judiciary branch. It's still "policy" (broadly speaking), but it's not legislating. In the most recent case, changing literally every Title IX program, overnight—as well as all employment scenarios nationwide—is clearly "legislating from the bench", since it a) applies with immediate effect to large numbers of people not party to the suit, and b) requires them to behave substantially differently than they had before the decision. (I'm fine with "legislating from the bench", BTW, that's literally how Civil Rights legislation is intended to work. Congress passed responsibility to the courts, just like in other areas they've passed responsibility to the executive branch.)
    - MichaelBurge 6y ago
      If a law is passed and people wait 40 years to enforce it(but then it's hot-topic and so will be enforced widely), is it "legislating from the bench" for the court to enforce a law that already exists?
      - erichocean 6y ago
        It's literally the first criteria that to count as new legislation, the effect must be immediate: > do parties unrelated to the lawsuit in question immediately, after the decision, have to behave substantially differently? The court has not argued in their decision that Congress meant to provide these protections—they explicitly only argued that the law can be (re-)interpreted today as allowing it (using a broad interpretation). They fully admit that Congress at the time did not expect it to be interpreted this way. That's the "legislating" part of "legislating from the bench": the actual legislators who voted on the original legislation did not intend to cause this behavioral change on ~200M Americans (at the time it was passed). 40 years later, the courts made the decision to legislate that behavior, from the bench. Personally, I have to admire that kind of Chutzpah—no one will accuse today's court of lacking the will to power. That one of Trump's "conservative" justices wrote the decision is the icing on the cake. :)

mjburgess 6y ago

In a common law system the role of the judiciary is to "legislate from the bench". I've never understood this peculiarly American objection.

deleted 6y ago
[deleted]
fennecfoxen 6y ago
America's Constitution was designed from inception to have strict separations of responsibilities among the legislative, executive, and judicial branches, such that they must work together to exercise power. This is meant to prevent any one individual or a party from becoming too powerful and thus endangering liberty. When they are not working together, they are meant to be powerless. Legislative power in particular was meant to be wielded by Congresspersons directly accountable to their constituents. Judges as legislators violate this separation, undermining not only key protections on democratic integrity, but the legitimacy of the whole scheme, through its avoidance of that direct democratic accountability. Note that excessive delegation from the legislature to the executive branch through agencies with rule-making power is also a separations-of-power concern, and there is special law around the procedures by which executive agency rule-making may take place. Another case is executive power being wielded by Congress: Seila Law LLC v. Consumer Financial Protection Bureau, argued this March and not yet decided, took on the problem that the head of the CFPB was not accountable to the President.
- mjburgess 6y ago
  In practice, there is no coherent "separation of power". Power is not some multivalent thing which can be exercised differently by different institutions. Power here is the ability of one group to direct/constrain the actions of another.. the judiciary, the executive and the legislature all exercise the same power. The only thing "separation" achieves is a system of mutual antagonism which functions (poorly) as a system of accountability. Here, congress at any point can redress "legislating from the bench" (ie., establishing legal precedent) by passing new law. If the judiciary ignores this law, then they can be removed from office. I cannot see any circumstance here where the legislature has issues new law in redress for a judicial ruling and then the judiciary has gone on to ignore it. What we're talking about here is when judges have simply "made up rules" where the law fails to provide answers. that is the role of the judiciary in a common law system! It's what provides for reasonable standards of individual freedom which adapt to the age. rather than havign everyone legislataed by an infinite number of rules est. in 1701
  - fennecfoxen 6y ago
    You say, "that is the role of the judiciary in a common law system!" but America is primarily a Constitutional-law system, and only secondarily a common-law system. We have laws (the Constitution) describing what the judicial branch is meant to do, and what you describe here as your ideal is at least partially at odds with what they say. It appears you are also a skeptic of the principle of Separation of Powers to begin with. You are, of course, not asked to accept that this is ideal. I will, however, ask that you accept that this structure was designed and codified into law to uphold that principle, and this is often at the root of (principled) objections when things are done your preferred way. This is a better place to start a conversation, rather than of celebrating your failure to understand (which is meant to imply that something does not make sense, but really says more about your own understanding.) Imagine an American complaining: "Parliament is so confusing! What is all this drama about 'forming a government' and coalitions? Why can't they just elect a President directly?" The American may or may not have a meaningful point, but if they do have a point, this point is rather ill-served by the venue and the manner in which it is raised. The way in which you raise your objections here is similar.
redler 6y ago
Judges should adjudicate from the bench -- decide matters in dispute. To "legislate from the bench" would be judges creating laws -- the province of the legislative branch, not the judiciary. It's certainly true there's a blurry space there, and when courts make decisions that may be interpreted as the equivalent of manifesting new law, you'll hear complaints about "legislating from the bench".
- erichocean 6y ago
  > It's certainly true there's a blurry space there It's trivial to determine if the court has "legislated from the bench" though: do parties unrelated to the lawsuit in question immediately, after the decision, have to behave substantially differently? Do extremely large numbers of people have to behave substantially differently after the decision? If they do, that's "legislating from the bench." That's literally the test. When they don't, a decision only affects the people in the suit and similar situations going forward (precedent). That's just the normal, everyday action of the judiciary branch. It's still "policy" (broadly speaking), but it's not legislating. In the most recent case, changing literally every Title IX program, overnight—as well as all employment scenarios nationwide—is clearly "legislating from the bench", since it a) applies with immediate effect to large numbers of people not party to the suit, and b) requires them to behave substantially differently than they had before the decision. (I'm fine with "legislating from the bench", BTW, that's literally how Civil Rights legislation is intended to work. Congress passed responsibility to the courts, just like in other areas they've passed responsibility to the executive branch.)
  - MichaelBurge 6y ago
    If a law is passed and people wait 40 years to enforce it(but then it's hot-topic and so will be enforced widely), is it "legislating from the bench" for the court to enforce a law that already exists?
    - erichocean 6y ago
      It's literally the first criteria that to count as new legislation, the effect must be immediate: > do parties unrelated to the lawsuit in question immediately, after the decision, have to behave substantially differently? The court has not argued in their decision that Congress meant to provide these protections—they explicitly only argued that the law can be (re-)interpreted today as allowing it (using a broad interpretation). They fully admit that Congress at the time did not expect it to be interpreted this way. That's the "legislating" part of "legislating from the bench": the actual legislators who voted on the original legislation did not intend to cause this behavioral change on ~200M Americans (at the time it was passed). 40 years later, the courts made the decision to legislate that behavior, from the bench. Personally, I have to admire that kind of Chutzpah—no one will accuse today's court of lacking the will to power. That one of Trump's "conservative" justices wrote the decision is the icing on the cake. :)