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OfflineMrBump
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"Legislating From The Bench"
    #8808794 - 08/22/08 01:26 AM (10 years, 2 months ago)

This is a term, used increasingly over the last 30 yrs (in a more and more pejorative manner), is used by both parties, however, recently, this term has been used more by conservatives click here, the chart is on page 13 of the pdf. IMO, conservatives use this phrase more often in the context of their desire to repeal Roe v Wade.

Recent Presidents, and Prez nominees (McCain said it in February), stump that they wont nominate judges who will legislate from the bench.

I ask, why is there such an outcry against "legislating from the bench?" sure, its the legislative branch's job to make laws, but often in that effort, compromises are made to a bill that makes the language vague and self contradictory. Bills are passed in packages, not piece meal, so sometimes  a little poorly worded legislation gets passed in an effort to pass some good legislation. anyone who studies law knows that despite the precise verbiage of a statute, there is often some way of re-interpreting it to fit your client's wants. and common law on the books cannot deal w/ each and every situation that arises in the future (lawsuits re new technology, etc) SCOTUS doesnt deal w/ basic car accident cases, they take on cases where the law is written in a way that promotes its dissection and interpretation, IMO.

There has been plenty of good law created through judicial legislation: the people's right to a court appointed attorney (Gideon), Miranda rights, and expanding citizen's rights against unlawful search and seizure (Mapp). The Sherman Anit-trust Act was basically drafted by the legislative branch in a very vague manner as to allow the courts to prosecute and interpret trust laws as they saw fit. Also, those who bemoan legislating from the bench the most seem to forget the 2000 elections, where the SCOTUS's decision (allegedly) gave Bush the Presidency in Bush v Gore. Ginsberg's dissenting argument stated “the Court’s conclusion that a constitutionally adequate recount is impractical ( a judgment call to say the least!) is a prophecy the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States.” voluminous amounts of statutory law and code never stood a chance against the "hanging chad" or butterfly ballots, there was no common law setting precedent. 

Ask yourself, "if law were so simple to interpret, then who would give a shit about who sat on the Supreme Court?"

I never seem to hear about restraining legislation from the executive branch.... Recent Presidents beginning w/ Reagan have attempted legislative power grabs, eg  the "line item veto". Clinton actually had line item veto power for a while. Bush has signed over 150 signing statements, which I know have technically no legal ramifications. but they do dictate how the executive branch will interpret and act upon a law that has just been passed. signing statements are not open to Congressional overruling and can erode the core of checks and balances.

Finally, a NYT review done in 2005 showed that the more conservative Justices were more inclined to vote against current Congressional statutes. click here the very definition of "legislating from the bench."

IMO, regardless of which party bitches about it the most, I think that bench legislation is inevitable b/c of the openness of the law as it is written and the inadequacies of our own language are often subject to interpretation.

So, is there too much legislation from the bench, too little?  what do you think?


--------------------
If it weren't for the bloody corpses, I wouldn't have any corpses at all.

There are two ways to get to the top of an oak tree: start climbing or sit on an acorn.

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OfflineSmackshadow
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Registered: 09/27/05
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Re: "Legislating From The Bench" [Re: MrBump]
    #8808868 - 08/22/08 01:45 AM (10 years, 2 months ago)

We live in a common law system.  If we lived in a civil law system it would be unheard of for the judges to interprate the law.  Its odd the best definition of an activist judge is one who does not rule the way "you" think best.


--------------------
The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.
     
~H. L. Mencken~


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InvisibleAnnapurna1
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Re: "Legislating From The Bench" [Re: MrBump]
    #8808886 - 08/22/08 01:48 AM (10 years, 2 months ago)

"legislating from the bench" is when a court fails to blindly rubber-stamp any given neocon attempt to revoke yet another constitutional liberty...

as an example..consider boumidiene/al-odah vs bush...article I.9.2 of the US constitution reads as follows ..

Quote:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.




however..in 2006..at the behest of bush and cheney..congress passed the millitary commissions act [PDF]...section 7 of the MCA directly conflicts with the suspension clause..above ..

Quote:

e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
‘‘(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.’’.




the SCOTUS simply ruled the obvious (albeit narrowly)..and threw out section 7 as an unconstitutional violation of the suspension clause...but john mccain..one of the principle authours of the MCA..would have none of it.. and he immediately screamed "legislating from the bench"...


--------------------


"anchor blocks counteract the process of pontiprobation..while omalean globes regulize the pressure"...


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Invisiblejohnm214
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Re: "Legislating From The Bench" [Re: MrBump]
    #8808900 - 08/22/08 01:50 AM (10 years, 2 months ago)

I agree with you that the terms used to denigrate some judges are often poorly applied.  I also think most people have stupid opinions w/ regards to judicial decisions- having never read opinions or listened to arguments.


THough I disagree w/ scalia on alot of criminal issues, he's probably one of the best at not doing what you discuss.


Ultimatly, congress is well suited to address most of these complaints- but choose not too.

They can easily overturn stupid decisions in most cases- though that doesn't remove blame from the judges.


I just started a  bit ago listening to supreme court oral arguments at oyez, and was really shocked at the questions the judges asked.


How stupid to discuss and ask about policy considerations when you have law to enforce.  This is the crap I don't like, and both sides do it.


The issue in court should be: what are the facts, and what is the law.


Screw decisions that cause bad outcomes, this is the legislator's job to fix.


I'm really sick of the court deciding that "drunk driving dangers" somehow impacts whether a search is reasonable under the fourth amendment, for example.  This is a good example of an area where the conservative judges are being "activists"- yet no one seems to call them on it.


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Invisiblejohnm214
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Re: "Legislating From The Bench" [Re: johnm214]
    #8808922 - 08/22/08 01:56 AM (10 years, 2 months ago)


Michigan State Police v. Sitz, 496 U.S. 444 (1990)
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J

(Conservatives largely joined the judgment of teh court)

Take a look at the last part of the opinion:

Quote:

In sum, the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment. The judgment of the Michigan Court of Appeals is accordingly reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.





What the hell does the state's interest in preventing drunken driving have to do with reasonableness?


The fourth amendment is related to whether a search is reasonable, and I fail to see how the dangers of not finding a search reasonable is related to this....  While I could say that having a search for no legitimate reason might make it unreasonable, I think this speaks more to a violation of due process.

Take a look at another portion of the majority opinion, what the hell is this about?

Quote:

No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation's roads are legion. The anecdotal is confirmed by the statistical. "Drunk drivers cause an annual death toll of over 25,000[ 496 U. S. 558 (1983); see Breithaupt v. Abram, 352 U. S. 432, 352 U. S. 439 (1957) ("The increasing slaughter on our highways . . . now reaches the astounding figures only heard of on the battlefield").






Anyone else find this to be bullshit?  What does this have to do with whether a search/seizure absent any cause whatsoever is reasonable?


A reasonable search is one where their is probable cause and exigent circumstances or a properly issued warrant.  Nothing else.


How do the conservative judges buy this crap?


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Invisiblejohnm214
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Re: "Legislating From The Bench" [Re: Smackshadow]
    #8808932 - 08/22/08 01:58 AM (10 years, 2 months ago)

Quote:

Smackshadow said:
We live in a common law system.  If we lived in a civil law system it would be unheard of for the judges to interprate the law.  Its odd the best definition of an activist judge is one who does not rule the way "you" think best.





Come off it.

The criticism is that judges ignore the statutes not that they modify common law.


And besides, common law is mostly settled, and can easily be overturned by statutory legislation.


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OfflineSmackshadow
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Re: "Legislating From The Bench" [Re: johnm214]
    #8809021 - 08/22/08 02:14 AM (10 years, 2 months ago)

Quote:

The criticism is that judges ignore the statutes not that they modify common law.




The criticism is that judges are making law.  And this does happen.  However it does not happen nearly to the extent to which the term activist judge is applied. 

Secondly common law is not largely settled, if for no other reason that statutory law changes what it is.  US laws and indeed most common law systems write laws which are vague with the desired intent that courts should fill in the blanks.  More over the supreme court and the appellate court verify what is and is not constitutional.  Doing so is not activist judging but rather applying the rights granted to government and people to the laws.

Both statutory law and administrative rules often directly offend the rights of the people, despite their seeming popularity.  It is the duty of our courts that these popular yet unjust laws are overturned.


--------------------
The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.
     
~H. L. Mencken~


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OfflineMrBump
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Re: "Legislating From The Bench" [Re: johnm214]
    #8809146 - 08/22/08 02:49 AM (10 years, 2 months ago)

Quote:

johnm214 said:

Michigan State Police v. Sitz, 496 U.S. 444 (1990)
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J

(Conservatives largely joined the judgment of teh court)

Take a look at the last part of the opinion:

Quote:

In sum, the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment. The judgment of the Michigan Court of Appeals is accordingly reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.





What the hell does the state's interest in preventing drunken driving have to do with reasonableness?


The fourth amendment is related to whether a search is reasonable, and I fail to see how the dangers of not finding a search reasonable is related to this....  While I could say that having a search for no legitimate reason might make it unreasonable, I think this speaks more to a violation of due process.

Take a look at another portion of the majority opinion, what the hell is this about?

Quote:

No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation's roads are legion. The anecdotal is confirmed by the statistical. "Drunk drivers cause an annual death toll of over 25,000[ 496 U. S. 558 (1983); see Breithaupt v. Abram, 352 U. S. 432, 352 U. S. 439 (1957) ("The increasing slaughter on our highways . . . now reaches the astounding figures only heard of on the battlefield").






Anyone else find this to be bullshit?  What does this have to do with whether a search/seizure absent any cause whatsoever is reasonable?


A reasonable search is one where their is probable cause and exigent circumstances or a properly issued warrant.  Nothing else.


How do the conservative judges buy this crap?




yeah thats pretty disappointing that they brought up "anecdotal evidence" and "media reports" in a judicial opinion. is this case about finding contraband as a result of a person being pulled over for DUI? what is this case about?


--------------------
If it weren't for the bloody corpses, I wouldn't have any corpses at all.

There are two ways to get to the top of an oak tree: start climbing or sit on an acorn.

Are you a carrot, an egg, or a coffee bean?


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Invisiblejohnm214
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Re: "Legislating From The Bench" [Re: MrBump]
    #8809240 - 08/22/08 03:20 AM (10 years, 2 months ago)

Quote:

thecornking said:

yeah thats pretty disappointing that they brought up "anecdotal evidence" and "media reports" in a judicial opinion. is this case about finding contraband as a result of a person being pulled over for DUI? what is this case about?





That case allowed random sobriety checkpoints to opperate without any probable cause at all- it determined such was a reasonable search and seizure, something I strongly disagree with.


This is the kind of crap that I don't care for, as well as the questions in oral arguments I mentioned that makes it seem like the judges are making policy determinations instead of simply enforcing the law.

And I picked this case cuz the conservative judges were in the majority, and I think its a good example that both sides do this crap to whatever ends they favor.


I mean, what does the death toll from drunken driving have to do with whether seizing people on a highway and subjecting them to a search is reasonable when they don't have ANY evidence against that driver whatsoever?


Quote:

Smackshadow said:
Quote:

The criticism is that judges ignore the statutes not that they modify common law.




The criticism is that judges are making law.  And this does happen.  However it does not happen nearly to the extent to which the term activist judge is applied. 

Secondly common law is not largely settled, if for no other reason that statutory law changes what it is.  US laws and indeed most common law systems write laws which are vague with the desired intent that courts should fill in the blanks.  More over the supreme court and the appellate court verify what is and is not constitutional.  Doing so is not activist judging but rather applying the rights granted to government and people to the laws.

Both statutory law and administrative rules often directly offend the rights of the people, despite their seeming popularity.  It is the duty of our courts that these popular yet unjust laws are overturned.






Yes, common law is largely settled- it's been around forever and only changes rarely.  WHile different areas have different takes on it, i.e. allowing "false light defamation" in certain areas but not others in the US, the actual elements and torts are largely identical.



By definition if a law modifies common law than it supplants it.  If you make a law allowing false light defamation suits in an area that doesn't presently allow such, the tort arises under the statute, not the common law, by definition.

You think judges should determine what the intent of a law is?  Why?  What does it matter?

Quote:

US laws and indeed most common law systems write laws which are vague with the desired intent that courts should fill in the blanks.  More over the supreme court and the appellate court verify what is and is not constitutional.




THe law is what it is.  Congress doesn't vote on intent, they vote on words, and those words are empowered by the consituttion and the legislature with the force of law.  If they intend the law to say something other than it says they should change the law, not get some judge to decide congress messed up and 'fix it'.  Just cuz the drafter intended a differenet result does not mean the other 500+ members of conress did, and it doesn't matter- it is wrong to hold someone accountable to the 'intent' of a law and not the law itself.  How the hell am I supposed to know what I can and cannot do if not by reading the damn law?


I agree with you that unconstitutional laws should be struck down, and do not agree with the religious nutters and others that when a court enforces the establishment clause to the frustration of the legislature that such is something to be discouraged.

Reading your posts makes me wonder if you are familiar with common law though.... Are you aware I'm talking about the historicaly adopted non-statutorily enacted law, almost entirely civil law now in the US, and not the "commonlaw" countries as that term is used to refer to the US, G.B., Aus. and others?


By definition when a judge makes a decision he makes law...


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