"Legislate from the bench"

[SHRED]

WTF do RW'ers mean by that statement?

I heard a RW'er at work say that the "problem" is we have judges that "legislate from the bench".

I am sure this is a catch phrase from the RW talk shows he constantly listens to but what the hell does it mean?
I should have asked him. I'll bet he would be stumped by the question.

[iwantmycountryback]

1. It's a meaningless staement simply used for the sheeple

It really means nothing at all. Here's an example. If a judge/court or whatever declares a gay marriage ban unconstitutional, the right will say that is 'activism' and "legislating from the bench" when what they are really doing is their job; deciding whether a law is constitutional or not. Unfortunately many Americans are too damn stupid to understand this.

[bluestateguy]

2. Any court decision a conservative disagrees with

that's judicial activism.

[Yupster]

3. It means

that a court is writing a law.

Just as a for instance.

A year or three ago a state supreme court ruled a state education budget unconstitutional because it violated the constitutional guarantee of an adequate education for each kid in the public schools as the reading scores in certain schools were very low.

That's fine. You could argue it one way or the other. That's fine, but the court went further. They mandated that the state legislature must add X millions of dollars to their budget for the children to get an adequate education.

That's writing a budget, and that's not the job of the courts. That is writing a law and something the courts shouldn't do.

In fact, the court could say the current system is not constitutional because the kids aren't learning to read, but it is up to the elected legislature to write the laws to address the problem.

They might want to switch curiculums, or merit pay teachers, or fire principals, or lower class sizes, or change discipline systems. There are many things they could do other than adding a specific amount of money to the budget.

Writing laws to address the society's problems is the domain of the legislative branch of government, not the judiciary's.

Hope that helps.

[barbaraann]

4. Republicans want legislation from the country club golf course.

n/t

[David Briggs]

5. It means "lead the way."

What it takes to get elected to the legislature is popularity. This often means appealing to the worst kind of bias and ignorance of the electorate and passing laws which offend our better constitutional conscience.

Courts are a check on that tyranny of the masses. If it were not for historical moments of courage on the part of the courts to "lead the way" despite the will of the people, contraceptives and interracial marriage would be illegal in at least half the states in this country, public accommodations would be racially segregated, and you would have to pay a poll tax to vote in elections. These are among a whole host of barbarities which were and would still be perpetuated in the name of the people, with the full support and sanction of their elected representatives.

The right wing calls any progressive judicial activism to strike down manifestly unjust and uncivilized statutes a usurpation of legislative power. Why they want to live in such an oppressive state is something of a mystery to me.

If we get the basic dichotomy straight, we will be on the right course leading to a happy democratic life: Maximum rights and freedoms for natural persons. Maximum scrutiny and control over institutions (with special emphasis upon business, and in particular any weapons business).

[TaleWgnDg]

6. It's a 2-second sound bite . . .

.
Another DUer asked what does "activist judge" mean? Geez. Another 2-second sound bite that the public is expected to chew and swallow!

Here's my explanation of both "activist judge" and "legislate from the bench":

An "activist judge" is a judge who goes outside the bounds that a judge should go. However, the caveat is that such a derogatory charge as "activist judge" is in the eyes of the beholder. What's "activist" to one, is within legal bounds to another.

Another term that's highly subjective is "legislate from the bench." It's a truly stupid term and demonstrates ignorance of the person speaking about it or the audience who swallows it. The reason? Because all judges make law. All judges opinions make new law. And that law is called "case law" (or "caselaw") which adds to existing law. It may narrow existing law or expand existing law. Case law is as old as is cases heard before judges. One last note about "legislate from the bench." The term attempts to demonstrate that judges should stay within the confines of the judicial branch and merely "interpret" law and not delve into the legislative branch of government by "legislating from the bench." Another derogatory term used against judges.

If one wanted to apply both terms, it could be said that the Rehnquist Court (SCOTUS w/ Rehnquist as Chief Justice) has been the most activist Court since the inception of SCOTUS -- its entire history. Why? Because the Rehnquist Court has over-turned more congressional laws than any other SCOTUS in the Court's entire history. The Rehnquist Court should have not legislated from the bench their own ideology. heh.
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=224&topic_id=1072&mesg_id=1077

_________________________

edited to add: Uuummmmm, whenever an ignorant rightwingnut (and which of them isn't?) says either term, they are throwing crap at liberals. Rightwingnuts (ignorantly) believe that the courts are loaded with liberals who do not interpret the constitution instead those liberals "make laws" that the legislative branch should be doing. For example, wasn't SCOTUS "legislating from the bench" and being a bunch of "activist judges" when they ruled in Brown v. Board of Education that public school would no longer be racially segregated b/c it violates the 14th amendment equal protection clause u/ our federal constitution? Those bunch of damn "activists," how dare they "legislate from the bench!" Etc., etc.
.

[SHRED]

7. good points

Also, next time the kool-aid drinkers say they don't want "activist judges" who "legislate from the bench" then I am going to say I agree and tell them how it's a crime how the "activist judges" attempt to strike down State Medical Marijuana Intiatives all over this country.

[TaleWgnDg]

8. Thanks. (I used to teach law). And, btw, go for it re "federalism" n/t