Debunking the Doctrine of "Legislating from the Bench"

Over the past several years, I've read many articles about judges who "Legislate from the Bench." Anecdotally speaking, it appears that it's generally conservatives who strongly disagree with the judicial outcome of specific cases. For example, the Iowa Supreme Court recently ruled that prohibiting gay marriage was unconstitutional. As a result, homosexuals may now marry in the state of Iowa.

Today's post is really not designed to discuss whether or not gays should be allowed to marry. Indeed, I am merely using this case for illustrative purposes. The case was brought before the Supreme Court, and the judges unanimously agreed that prohibiting gay marriage was unconstitutional. Conservatives decried the decision as an attempt by Iowa's Supreme Court judges to legislate from the bench. My issue is not whether or not the decision was correct, but whether or not such a condition exists.

For starters, I should define "legislate." My non-legal definition of legislate is the making of laws. The legislative process, in America, always starts with congress. The idea for a law may come from anywhere... the executive branch, the legislative branch, or even the constituents of a given government. The actual process of making a law, however, always starts with congress.

The process itself is generally complicated and time-consuming. A legislator writes up the bill. The bill is then reviewed by the appropriate committee(s) in congress. Most proposed laws never get past this initial phase. Assuming that the recommended legislation (a bill) passes committee scrutiny, it then goes to the full congressional body for a vote. Each body -- the House of Representatives and the Senate -- must approve the bill. Furthermore, the bill must have the EXACT SAME WORDING before it goes to the next stage, which is that it is presented to the head of the executive branch for approval (the Mayor, Governor or President for the purpose of this article). The executive head has a period of time to approve or deny the legislation. If approved, the bill becomes law.

If the bill is not approved, congress can STILL force the bill into law. This is done by congress re-voting on the bill, but it has to be approved by a 2/3 majority. As you can imagine, this doesn't happen very often. The idea here is a balance of power. The legislative branch and Executive branch of government are supposed to be equally powerful.

The branches have different, but equally important functions in our government. The legislative branch proposes and writes laws... and to an extent makes the laws. The executive branch ratifies and enforces laws. The judicial branch interprets laws.

In order for the judicial branch to interpret the law, that law must be challenged through the judicial system. Going back to the gay marriage issue, someone has to say It's not fair that gays can't marry, and then file a lawsuit. The case goes before a judge who decides whether or not the law behind this claim is valid. Regardless of the outcome, the loser can appeal. Then, the appeals court chooses whether or not to hear the case again. (Most cases are appealed, and the appeals court declines to hear the case.) And even then, the loser of the appeal can appeal to the Supreme Court. The Supreme Court, like the appellate court, has the right to decline to hear a case. If at ANY point, the next higher court declines to hear a case, the lower court's ruling stands, and that's that.

By now, you should understand that VERY FEW cases get to the Supreme Court. And the Supreme Court is the ONLY body that has the authority to invalidate a law by calling it unconstitutional. The Supreme Court cannot draw up legislation. They cannot approve or enforce the legislation if it becomes law. The Supreme Court's purpose is to interpret laws, and their interpretation of the law is based on the constitution. Please note, that I said "based." The Constitution was designed as a framework of laws, written with the understanding that times and circumstances change.

The term "Legislating from the Bench" implies that judges are somehow writing laws from the courtroom... and a more subtle implication is that this judicial activism is destroying the country. The reality is that each branch of the government... the executive, the legislative, and the judiciary... have all taken their turn as the prominent branch of government. But in the end, NONE of them have been able to achieve and maintain a dominant position in government. Anyone who believes that these alleged activist judges are out of bounds should seriously brush up on their constitutional law, and their history. I would also like to point out that the ONLY time a judge is accused of legislating from the bench is when a long-standing law is overturned.