What Exactly Does “Legislating from the Bench” Mean?
posted by Daniel Solove
In 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.