The Inevitability of Legislating from the Bench

by David Carlin - August 6, 2009

Reprinted with permission.

The Senate Judiciary Committee hearings on the nomination of Judge Sonia Sotomayor to the United States Supreme Court reminded us once again of the never-ending debate as to whether judges should "legislate from the bench." Political conservatives, of course, say that they must not. The job of judges, we are told, is to judge in accordance with the law; it is the job of the legislature to make law.

Political liberals, on the other hand, believe that judges should legislate from the bench. Of course, they never say this in so many words. Quite the contrary, they insist just as strongly (well, almost as strongly) as conservatives that judges should not legislate, that they should judge in accordance with the Constitution. But liberals then immediately contradict themselves by saying that we Americans have a "living Constitution" – an expression that, translated into plain English, means that the Supreme Court should, when appropriate, make de facto amendments to the Constitution.

The truth is, as everyone knows (or should know), it is inevitable that judges will legislate from the bench. Even if we had a judiciary made up of nothing but the strictest of strict constructionists, we would still have an ever-growing body of judge-made law.

This is inevitable because of one principle and one fact: Judges, when they take jurisdiction in a case, have a duty to decide the case. They cannot say, "Oh, this is much too hard for me. I don't know what to decide. I give up. Next case, please." (Here and there we run across judges who, due to some moral or psychological problem, do in effect say this. But insofar as they say it, they are bad judges who violate one of the most fundamental of all judicial duties.)

The fact is that statutory and constitutional laws are frequently written in such a way that their meaning is not perfectly clear. If the meaning of all laws were perfectly clear, laypersons wouldn't find it necessary to seek the counsel of lawyers, nor would lawyers find it necessary to go to law school; in fact, there would hardly be any need for a legal profession. Is it even conceivable that there could be a legal system in which the meaning of all laws is perfectly clear? Perhaps in some impossible utopia; but in the real world of Anglo-American law, for the past eight or nine hundred years, we have never come close to this ideal.

The result of this principle combined with this fact is this: When a judge decides a case in which the meaning of the law is not perfectly clear, the judge "makes" law. The question, then, should not be whether judges should legislate from the bench – for inevitably they will so legislate. The real question should be: "When legislating from the bench, what principle of interpretation should guide the judge in his or her law-making?"

It is when you ask this question that you see the real difference between political liberals and political conservatives, especially when it comes to instances in which the Supreme Court construes the Constitution. Conservatives hold that the Court should be guided by the intention of the people who made the Constitution. For instance, there is not the slightest reason to believe that the authors of the Constitution ever intended to write into it a right to abortion; nor is there any reason to believe that they intended to abolish the death penalty. Therefore, abortion is not protected by the Constitution, nor is capital punishment forbidden.

Liberals, who wish to use the Constitution to protect abortion and to prohibit the death penalty, therefore have to find some principle of interpretation other than the principle of original intention. They have found various alternative principles, sometimes combining two or more. Their favorite has been what may be called the Implication Principle. They grant, for example, that the makers of the Constitution never dreamt of legalizing abortion; but the makers embraced certain abstract principles XYZ, which, if carried out to their logical conclusion, imply (so it is argued, somewhat dubiously) a right to abortion.

There is also the Well-Being Principle: American society will be better off if the Constitution is construed this way instead of that. Then there is the Public Opinion Principle: The average American would like the Court to reach a particular practical conclusion, and the Court can do this by reading the Constitution one way instead of another. Looming on the liberal horizon is the International Principle (really the European Union Principle): American understandings of human rights must keep step with European understandings.

I myself prefer the conservative principle of original intention. Why? Because one of the easiest parts of the Constitution for a layman (like myself) to read and understand is Article V, the part relating to constitutional amendments. It is, I think, perfectly clear that the Constitution is not to be amended except as the result of a great supermajority (two-thirds of each house of Congress plus three-fourths of all the states).

But when the Supreme Court declares, as it has done, that abortion and sodomy are constitutionally protected rights; or when it rules, as it may do in the future, that the death penalty is unconstitutional – then it is, in effect, amending the Constitution without going through the trouble of the supermajority process. That's not playing by the rules we all agree to when we accept the Constitution as the great law of the land. (Let me add that, personally, I am against the death penalty and think there should be no laws criminalizing adult sodomy. Nonetheless, I think it preposterous to contend that the Constitution mandates my preferences.)

This is my chief grievance against today's political liberals: They cheat. They don't play by the rules of our social compact – the Constitution. To achieve their goals, they want the Court to amend the Constitution in a way clearly prohibited by the Constitution.

David R. Carlin is the author of The Decline and Fall of the Catholic Church in America.