"Legislating from the bench"

[SHRED]

During the Supreme Court judge hearings; at work, a Limbaugh listening co-worker said, "I am tired of judges 'legislating from the bench'".
Huh?
WTF does that mean?

I wish I was quicker with a comeback or I would have said something like, "Yeah, me too. I am sick of them trying to legislate overturning Roe v. Wade, CA medical marijuana laws, and forcing prayer in public schools."

Also, the Repubs threw away their mantra of "no litmus test" and "up or down vote" with the Harriet Meyers debacle...didn't they?

[Starbucks Anarchist]

1. In the broad sense, expanding the Constitution.

Of course, the Constitution was written when slavery was legal, women couldn't vote and electricity had been discovered shortly before.

So, for example, the Commerce Clause didn't refer to internet transactions because it obviously wasn't around at the time, yet these strict contructionists want you to follow the Constitution exactly as written, according to their logic.

http://en.wikipedia.org/wiki/Commerce_Clause

Then again, "strict constructionist" is a code word for "keep the poor and oppressed down."

[AllegroRondo]

2. Its code for "overturning laws we like"

such as the gay marriage prohibitions.

[TechBear_Seattle]

3. The concept is called "common law"

Basically, common law says that judicial rulings are a part of the body of law; a ruling by a court sets a "precedent" which must be taken in to consideration when deciding similar cases. The higher the court, the more weight a precedent carries, and the US Constitution effectively gives the US Supreme Court final say as far as precedent (Article III, Section 2 and Article VI, para. 2, US Constitution.) Common law is a fundamental part of the British legal system and has been a fundamental part of the US legal system since the earliest British colonies.

What gets the neo-cons' panties in such a twist is when the Court interprets the Constitution in a way that slaps them down. They have no problem at all when the Court supports their position, and certainly no compunction against packing the Court to guarantee that their "activist judges" will overrule the other "activist judges."

[gratuitous]

4. "Up or down vote" was just on hiatus

It was being re-tooled during the Miers nomination, but came roaring back when rumblings were heard during the Alito rubber stamp. Of course, "up or down vote" doesn't apply to such things as Democratic initiatives, motions for censure, or calls for an investigation into administration law-breaking.

[adwon]

5. It means nothing

After all, what does your co-worker think the common law is?

[ProfessorGAC]

6. It Means Nothing

I've encountered that. My reply has been "THAT'S THEIR JOB! When the legislature gets it wrong, the court's job is to correct that mistake. That's why they're there! Why do you hate america?"

Boy, that shuts 'em up.
The Professor

[Neil Lisst]

7. tell the ignorant SOB that Rehnquist did that more than any Chief Justice

If you watched the hearings for Roberts and Scalito, you saw senators from both parties raise hell about the SC under Rehnquist knocking down laws of congress.

The term "legislating from the bench" is supposed to mean creating new concepts in law, such as the ruling in Massachusetts that interpreted the Massachusetts constitution as providing no prohibition on same sex marriage, and rights as a citizen that would allow same.

The truth is that judges are called on every day to figure out what some legislature meant, and after doing so, determining whether that law is constitutional.

[Toots]

8. Ask for a specific example

Usually all they know are sound bites. They have no examples when asked and don't really understand the term. :shrug: Ask about no knock policy?

[DelawareValleyDem]

9. It means "I don't like certain court rulings

but don't know enough about the law to explain cogently why the court erred, so I'll dismiss the issue with a catch phrase and hope no one challenges me on it."

[The Stranger]

10. "FORESTALLING THE TYRRANY OF THE MAJORITY"

Explain to him that civil rights and civil liberties are not subject to majority rule. They exist in the person.