The term "legislating from the bench" is used to discredit Supreme Court decisions that favor one party over another. But is it really a bad thing?

What does “legislating from the bench” mean, and is it actually part of the Supreme Court’s job? Photo: Shutterstock

“Legislating from the bench.” The term is widely used as a common complaint from those who seek to discredit Supreme Court’s decisions for favoring one political ideology over another or those who are skeptical of potentially partisan Supreme Court justice appointments.

But if we take a closer look, what does it really mean to legislate from the bench, and does criticizing the Supreme Court for doing so actually make any sense?

Legislating from the bench describes a situation in which Supreme Court justices favor partisanship over legal precedent or objective interpretation of the constitution in reaching their verdicts. The criticism goes that instead of interpreting laws, the Supreme Court goes outside expected responsibility to instead effectively create law by critiquing and possibly condemning laws passed by Congress.

Civics Lesson: The Supreme Court

The Supreme Court is part of the Judicial Branch of the U.S. government.The Supreme Court is part of the Judicial Branch of the U.S. government. It is just one of three of the major branches of government in the United States, the other two being the Legislative Branch (Congress) and the Executive Branch (the presidency). Supreme Court Justices serve life terms, making them (ideally) impervious to special interest groups and lobbyists, seeing as reelection campaign funds never become an issue.  

Codified in the Judiciary Act of 1789, there were originally six justices, appointed by the president, and confirmed by Congress. The Judiciary Act of 1869 (also known as the Circuit Judges Act of 1869) eventually altered this, stipulating that the Supreme Court would consist of the Chief Justice and eight associate justices. It is the last piece of major legislation to alter the size of the U.S. Supreme Court, although Franklin D. Roosevelt attempted to do so with his proposed Judicial Procedures Reform Bill of 1937, which came to be known as his “court-packing plan.”

But it seems as though those who would seek to discredit the Supreme Court for allegedly “legislating from the bench” are free to pick and choose which cases they wish to be critical of—based, of course, solely on political leanings.

Truth be told, legislating from the bench may articulate exactly what the Supreme Court is meant to do. The Supreme Court was founded in part to balance the executive and legislative branches of government, and it can help prevent the legislative branch from overstepping its legal obligations by measuring the laws they pass against the U.S. Constitution.

Of course, each justice is appointed by the president and approved by Congress—institutions that are both heavily influenced by partisanship—but the Supreme Court is uniquely structured to prevent abuse of partisan power, even thought it’s perhaps the least democratic system when compared to the other two major braches of the federal government.

For example, many people point to the “District of Columbia vs. Heller” case as an example of a big win for Second Amendment and gun rights advocates, but within the ruling, Supreme Court Justice Scalia articulated that guns must still include reasonable regulations. The ruling definitely favored pro-gun conservatives, but not in the hyper-partisan way in which the ruling is remembered.

Supreme Court justices take the role for life, and by virtue of being appointed rather than elected, they differ from senators and congressional house representatives in that they are not beholden to the influence of lobbyists who would otherwise seek to bolster reelection coffers.

These lifelong appointments provide Supreme Court justices opportunities to examine their biases over long periods of time. If their partisan leanings change, then it’s more likely to be a function of their growth in understanding of the Constitution than it is a symptom of political expediency.

This represents another way in which “legislating from the bench” may simply describe Supreme Court justices doing their jobs correctly. If part of the Supreme Court’s job is to be a political check on Congress, then in a way, any law deemed unconstitutional should be seen as a win—an example of a government institution properly filling its role as dynamic and engaged critics of the legislative branch.

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