Should judges be able to legislate from the bench?

Answer 1

Never. Attempting to do so should be grounds for immediate impeachment.

The powers of government were split up for a reason.

While I agree with most of what coragryph wrote above, I disagree on the "activist" judges portion. The 9th circuit is the best example of judges who routinely attempt to exceed their authority. (Leading them to be come the most often overturned circuit.)

Answer 2

"If you ask how [the judge] is to know when one interest outweighs another, I can only answer that he must get his knowledge just as a legislator gets it, from experience and study and reflection; in brief, from life itself. Here indeed is the point of contact between the legislator's work and his ... Each is indeed legislating within the limits of his competence. No doubt the limits of the judge are narrower. He legislates only between the gaps.
"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life.' "

Judges may legislate, but only if they do so "between the gaps." The parameters are laid down by the law-makers, and the judges make decisions within those parameters.

Some judges are not very interested in even thinking about the parameters, though. They are the ones who make law outside of the parameters. They are legislating from the bench.

Answer 3

Absolutely not, the purpose of the Judicial branch is to "interpret" the laws....not make them...that is the Legislature's job....

but I do think that in some areas of the country judges are beginning to legislate from the bench....and i do not think that it is right...

Answer 4

That's unconstitutional. Courts rule on the constitutionality of a law; also interpret laws for clarity and resolve disputes. The courts in ruling on disputes create law by precedent, as was abortion[Roe vs Wade} It has been challenged and change brought about.since the orginal ruling. There is a separation of powers in our government, Congress writes laws[legislate] president signs them into law or vetos them; whereby they go back to congress. The courts interpret the constitution and determine constitutionallity, and rules on disputed laws/issues brought to court.

Answer 5

What do you mean by "legislate from the bench?"

The court's primary responsibility is determining how the law applies to any situation, and/or if the law is constitutional.

In other words, it is their primary job to "legislate from the bench" as relates to statutes.

How do you propose laws should be interpreted if not by courts? Should we ask preachers & priest to interpret laws?

Answer 6

No. And they don't. Legislation is pro-active prospective forward- looking general rules. That's not what judges do.

What judges do is decide cases and set rules for how later similar cases will be resolved. That's called common law and precedent, and has been the way our courts have worked for centuries in England, Canada, the USA and Australia. And since the beginning, courts have had the job of interpreting laws and ruling on specific issues. Every time a court case is cited for a particular rule, that's an application of the Common Law.

Why do those rulings have any effect on later cases? Because of the doctrines of precedent and "stare decisis" (literally, "let the decision stand"). The rulings of courts have value in later cases to ensure that the same set of facts achieves the same outcome. That's why cases have precedent value. And that's really the only way the legal system can work. Can you imagine what the legal system would be like if every judge was completely free to interpret the laws, without any regard for what previous court decisions had said on the subject?

Judge-made law, common law, is essential to the proper functioning of the legal and legislative system that has served England, Australia and the US for centuries. Without that concept of binding precedent, every court case could come out completely differently, with no consistency. People could not depend on figuring out how a law was going to be interpreted, because judges were not allowed to make their interpretations binding on lower/later courts.

So, it's the job of courts to interpret the laws, and to apply them to specific types of situations. And for stability sake, those decisions must have binding authority on lower courts through precedence.

The only alternative is to throw away the doctrine of precedent entirely. That means that any court can come up with any interpretation, regardless of how the law was interpreted in the past. If the legislature wanted consistency, then the legislatures would have to modify and update the laws, based upon every interpretation that was decided by the courts. Every law would be constantly in flux, as the legislature tweaked wording and added exceptions into the statutes.

So, either legislators would constantly need to update laws to reflect and include every possible later specific interpretation, or we lose any concept of stability and predictability in the legal system.

Finally, remember that with the exception of federal appellate courts interpreting the US Constitution, any interpretation of a law by the courts can be overturned by the legislature simply by changing the law in question. So, the legislature always has the final say, except for Constitutional issues. And even there, there is still the option of amending the Constitution.

The complaint against 'Activist Judges' is not that they are making the rulings that their job requires. It's simply that some people in power don't like the rulings, and this is their way to complain while obscuring the real issue.

Answer 7

You mean like when they ended segregation?

Answer 8

why not? they are already doing it anyway.

Answer 9

no but they do and lawyers are scum too

Answer 10

No.