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Why ought judges not legislate? https://law.lclark.edu/live/files/9581-lcb111peabodypdf https://law.lclark.edu/live/files/9581-lcb111peabodypdf "I recognize w
by threatofrain 6y ago
Why ought judges not legislate?
https://law.lclark.edu/live/files/9581-lcb111peabodypdf https://law.lclark.edu/live/files/9581-lcb111peabodypdf
"I recognize without hesitation that judges do and must legislate, but the legislatures should be hampered by limitations only if they are found in the plain words
of the constitution."
-- Chief Justice Oliver Wendell Holmes.
- HideousKojima 6y agoBecause judges are not elected officials are are not accountable to the voting public for their actions. They shouldn't legislate from the bench for the same reasons that unelected dictators are considered a bad thing
- ceejayoz 6y agoThey're absolutely accountable. The process is intentionally difficult - we'd have to push our elected representatives to impeach (or pack the court), and that's a high bar - but they're hardly dictators.
- threatofrain 6y agoAlso most judges are elected, and there's a blurry line on legislative powers and duties between all three branches of US government.
- masonic 6y agoMost state judges have to stand for election at some point.
- andrewla 6y agoWhere is that quote from? In his dissent in Southern Pacific Co. v. Jensen, Holmes said "I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions." Assuming a plain reading of his analogy through chemistry, he's saying that they can "legislate" when the law leaves a situation undefined and they must reason through analogy.