Legislating from the bench

[manifold]

Legislating from the bench: Fallacious talking point or legitimate concern?

I hear this phrase quite often, especially with respect to recent decisions on same-sex marriage as well as the all-time benchmark, Roe v Wade. However, I question the implication that anything has been "legislated" at all by these decisions. By definition, legislation is the making of laws. And these decisions don't actually "make" any laws at all, but rather strike down laws that have already been made (and subsequently challenged), thereby placing limits on what the government is allowed to legislate. So, is placing limits on laws that are allowed to be enacted the same thing as enacting laws? Technically speaking it certainly isn't, but what about effectively and pragmatically speaking?

Please share your thoughts and opinions.

 

[GHook93]

Legitimate concern. There are many cases where the supreme court needs to invalid a law that is unconstitutional, but far too many times they are creating laws instead of just invalidating laws. There is a separation of powers for a reason.

 

[manifold]

Legitimate concern. There are many cases where the supreme court needs to invalid a law that is unconstitutional, but far too many times they are creating laws instead of just invalidating laws. There is a separation of powers for a reason.

Can you give me an example of a law the supreme court has created?

 

[jillian]

The answer depends on whose ox is being gored.

i lean toward fallacious talking point until they legislate from the bench and decide that corporations are suddenly people...

then i think it's legislating from the bench.

 

[Sheldon]

"Legislating from the bench" is just used as a code for "court decision I disagree with". The Republican talking points seem to use the phrase more than the Democrats do. I think it's a dog whistle for partisans.

So, is placing limits on laws that are allowed to be enacted the same thing as enacting laws? Technically speaking it certainly isn't, but what about effectively and pragmatically speaking?

The judicial branch exists in part to place limits on what the other two branches of government can do. The legislative branch makes rules for what we the people can't do. The judiciary makes rules--via court opinions--for what the legislature can't do. So, vicariously, the judiciary make rules that can affect what we the people can't do. Their court decisions/opinions are effectively legislation, in that respect.

even though the hacks use "legislating from the bench" as a pejorative, the phrase is just a round-about way of describing with the judiciary does and is supposed to do, in practice. It's really not that much of a pejorative any more than if you called Rosie O'Donnel a lesbian.

 

[Procrustes Stretched]

Legitimate concern. There are many cases where the supreme court needs to invalid a law that is unconstitutional, but far too many times they are creating laws instead of just invalidating laws. There is a separation of powers for a reason.

given your premise...

please list 3 examples of laws created by the courts.

is should be simple to do.

--

a pity post edit: here is a link that may help you. I doubt it will, but I've been known to be wrong-- once or twice before.
Law of the United States - Wikipedia, the free encyclopedia

 

[GHook93]

Legitimate concern. There are many cases where the supreme court needs to invalid a law that is unconstitutional, but far too many times they are creating laws instead of just invalidating laws. There is a separation of powers for a reason.

Can you give me an example of a law the supreme court has created?

Gay marriage in CA! Abortion rights! Birthright clause! Separate but Equal Doctrine (Yes this was set up by Plessy v Ferguson back in the day! Fundmental Right of Privacy (this right was created not by the constituion but by Marbury v. Madison), the Right to Marry Interracially, the Supreme court jurisdiction beyond diversity cases.

 

[GHook93]

The answer depends on whose ox is being gored.

i lean toward fallacious talking point until they legislate from the bench and decide that corporations are suddenly people...

then i think it's legislating from the bench.

Its not a black and white concept, because invalidating in essence can create a law. But there are very good cases like the Loving case that made interracial marriage legal. Or Roe v Wade which created the fundmental right of privacy. Or Marbury v Madison which gave the Supreme Court power of the constitutional questions.

 

[Procrustes Stretched]

Legitimate concern. There are many cases where the supreme court needs to invalid a law that is unconstitutional, but far too many times they are creating laws instead of just invalidating laws. There is a separation of powers for a reason.

Can you give me an example of a law the supreme court has created?

Gay marriage in CA! Abortion rights! Birthright clause! Separate but Equal Doctrine (Yes this was set up by Plessy v Ferguson back in the day! Fundmental Right of Privacy (this right was created not by the constituion but by Marbury v. Madison), the Right to Marry Interracially, the Supreme court jurisdiction beyond diversity cases.

you have not listed a law.

Legitimate concern. There are many cases where the supreme court needs to invalid a law that is unconstitutional, but far too many times they are creating laws instead of just invalidating laws. There is a separation of powers for a reason.

given your premise...

please list 3 examples of laws created by the courts.

is should be simple to do.

--

a pity post edit: here is a link that may help you. I doubt it will, but I've been known to be wrong-- once or twice before.
Law of the United States - Wikipedia, the free encyclopedia

 

[Procrustes Stretched]

The answer depends on whose ox is being gored.

i lean toward fallacious talking point until they legislate from the bench and decide that corporations are suddenly people...

then i think it's legislating from the bench.

Its not a black and white concept, because invalidating in essence can create a law. But there are very good cases like the Loving case that made interracial marriage legal. Or Roe v Wade which created the fundmental right of privacy. Or Marbury v Madison which gave the Supreme Court power of the constitutional questions.

you have not listed a law.

Legitimate concern. There are many cases where the supreme court needs to invalid a law that is unconstitutional, but far too many times they are creating laws instead of just invalidating laws. There is a separation of powers for a reason.

given your premise...

please list 3 examples of laws created by the courts.

is should be simple to do.

--

a pity post edit: here is a link that may help you. I doubt it will, but I've been known to be wrong-- once or twice before.
Law of the United States - Wikipedia, the free encyclopedia

 

[George Costanza]

Legislating from the bench: Fallacious talking point or legitimate concern?

I hear this phrase quite often, especially with respect to recent decisions on same-sex marriage as well as the all-time benchmark, Roe v Wade. However, I question the implication that anything has been "legislated" at all by these decisions. By definition, legislation is the making of laws. And these decisions don't actually "make" any laws at all, but rather strike down laws that have already been made (and subsequently challenged), thereby placing limits on what the government is allowed to legislate. So, is placing limits on laws that are allowed to be enacted the same thing as enacting laws? Technically speaking it certainly isn't, but what about effectively and pragmatically speaking?

Please share your thoughts and opinions.

Fallacious talking point - hands down.

Most of the people who use this phrase have no idea what it really means. The vast majority of the time, when someone decries a judicial decision as "judicial legislation," all they are saying is that they do not agree with it. End of story.

 

[George Costanza]

Legitimate concern. There are many cases where the supreme court needs to invalid a law that is unconstitutional, but far too many times they are creating laws instead of just invalidating laws. There is a separation of powers for a reason.

Can you give me an example of a law the supreme court has created?

There are are two types of laws: (1) statutory law and (2) case law. Each is just as legitimate and just as effective as the other.

 

[GHook93]

Legitimate concern. There are many cases where the supreme court needs to invalid a law that is unconstitutional, but far too many times they are creating laws instead of just invalidating laws. There is a separation of powers for a reason.

Can you give me an example of a law the supreme court has created?

There are are two types of laws: (1) statutory law and (2) case law. Each is just as legitimate and just as effective as the other.

True, but sometimes of evils of case law create havoc. The Separate but equal doctrine as the prime example. There are others like the right to privacy that are great. Its not a black and white issue whether its good or bad by any means!

 

[Procrustes Stretched]

Legitimate concern. There are many cases where the supreme court needs to invalid a law that is unconstitutional, but far too many times they are creating laws instead of just invalidating laws. There is a separation of powers for a reason.

Can you give me an example of a law the supreme court has created?

There are are two types of laws: (1) statutory law and (2) case law. Each is just as legitimate and just as effective as the other.

give an example

 

[Procrustes Stretched]

Can you give me an example of a law the supreme court has created?

There are are two types of laws: (1) statutory law and (2) case law. Each is just as legitimate and just as effective as the other.

True, but sometimes ot evils of case law create havoc. The Separate but equal doctrine as the prime example. There are others like the right to privacy that are great. Its not a black and white issue whether its good or bad by any means!

given your premise...

please list 3 examples of laws created by the courts.

is should be simple to do.

--

a pity post edit: here is a link that may help you. I doubt it will, but I've been known to be wrong-- once or twice before.
Law of the United States - Wikipedia, the free encyclopedia

 

[George Costanza]

Can you give me an example of a law the supreme court has created?

There are are two types of laws: (1) statutory law and (2) case law. Each is just as legitimate and just as effective as the other.

give an example

Sure. First case law. The Miranda decision -police must advise suspect in custody of right to counsel and right to remain silent prior to questioning. Brown v. Board of Education - Eliminates the separate but equal doctrine and desegregates public schools. Just about any other Supreme Court decision that expands on the Bill of Rights. On a local level, District Court of Appeals decisions making evidentiary rules, procedural rules, etc.

Statutory Law - Penal Code 187(a) - don't murder anyone. PC 459(a) - don't burglarize their home either. PC 422 - Don't threaten to kill them. Want more? There are probably at least 80,000 or so of them . . .

 

[manifold]

I really thought this topic would garner much more lively discussion than what has transpired so far.

Just goes to show that you never really know.

As the saying goes, better luck next time.

 

[Procrustes Stretched]

There are are two types of laws: (1) statutory law and (2) case law. Each is just as legitimate and just as effective as the other.

give an example

Sure. First case law. The Miranda decision -police must advise suspect in custody of right to counsel and right to remain silent prior to questioning. Brown v. Board of Education - Eliminates the separate but equal doctrine and desegregates public schools. Just about any other Supreme Court decision that expands on the Bill of Rights. On a local level, District Court of Appeals decisions making evidentiary rules, procedural rules, etc.

Statutory Law - Penal Code 187(a) - don't murder anyone. PC 459(a) - don't burglarize their home either. PC 422 - Don't threaten to kill them. Want more? There are probably at least 80,000 or so of them . . .

When most trolls (yes it is usually a troll who starts shouting that the courts create laws) suggest the courts create laws, they are not arguing against case law. No one argues against case law anymore. Haven't really done this since the early 1800s.

What most all Town Criers are shouting is about imaginary laws -- specific laws. That is why I say name a law.

Miranda isn't a law on the books, it is law. No one can pull Miranda out of teh law books and cite the actual law.

Now case law and rights? No one dare feeds talking points to trolls that attack rights. When they seem to, they attack entitlements or 'special' unconstitutional rights.

this can be a great discussion worthy of a few here, but I wonder if it would take off. It's end of summer.

Go back to Jefferson, Madison, Hamilton, CJ John Marshall, et al...and see the arguments on case law.

 

[jillian]

There are are two types of laws: (1) statutory law and (2) case law. Each is just as legitimate and just as effective as the other.

give an example

Sure. First case law. The Miranda decision -police must advise suspect in custody of right to counsel and right to remain silent prior to questioning. Brown v. Board of Education - Eliminates the separate but equal doctrine and desegregates public schools. Just about any other Supreme Court decision that expands on the Bill of Rights. On a local level, District Court of Appeals decisions making evidentiary rules, procedural rules, etc.

Statutory Law - Penal Code 187(a) - don't murder anyone. PC 459(a) - don't burglarize their home either. PC 422 - Don't threaten to kill them. Want more? There are probably at least 80,000 or so of them . . .

miranda warnings weren't technically judicially created 'law'. rather, it was a determination of what constitutes a waiver of one's 5th amendment right against self-incrimination. in order to assure that the waiver was a knowing one, the court issued the miranda decision. later cases examined what constitutes custodial interrogation so as to ascertain when the warnings are triggered. but i don't have to tell you that. i think i just don't see it as judge created law.

by the same token brown v bd of ed examined what constitutes equal protection under the law as already required by the constitution. it was not newly created law, but an interpretation, albeit one which reversed earlier determinations, of the law as it was already set forth in the constitution.

 

[sealybobo]

Legislating from the bench: Fallacious talking point or legitimate concern?

I hear this phrase quite often, especially with respect to recent decisions on same-sex marriage as well as the all-time benchmark, Roe v Wade. However, I question the implication that anything has been "legislated" at all by these decisions. By definition, legislation is the making of laws. And these decisions don't actually "make" any laws at all, but rather strike down laws that have already been made (and subsequently challenged), thereby placing limits on what the government is allowed to legislate. So, is placing limits on laws that are allowed to be enacted the same thing as enacting laws? Technically speaking it certainly isn't, but what about effectively and pragmatically speaking?

Please share your thoughts and opinions.

Look at this Republican judge in Texas legislating from the bench

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