Same as judicial activism?
2006-12-13 02:53:07 · 11 answers · asked by kissmybum 4 in Politics & Government ➔ Politics
It is not within the power of any judge to create a law, they can only strike down unconstitutional laws in accordance with the checks and balances system of the constitution.
If the legislative branch wasn't continually passing laws that violate our constitution the judges would have no need to strike them down.
All you morons screaming about Roe v Wade need to realize that they did not create a law to legalize abortion, they struck down the unconstitutional law baning it.
2006-12-13 03:05:30 · answer #1 · answered by sprcpt 6 · 1⤊ 1⤋
Legislating from the bench is a term used to describe creative judgments from various courts. The other examples given so far don't really apply. It never happens in criminal cases and Roe v. Wade really isn't a great example. It happens in far more less than noticeable cases. There is an expression in law.."bad facts make bad law". Judges very often have personal feeling regarding an issue or a case. Given the right set of facts, maybe a plaintiff that they feel pity for or a defendant that they find particularly distasteful, a court will find a way to rule for a party even though the law is clearly against that party. When this is done, the court, in its written opinion, will usually find some exception or reason why the letter of the law does not apply in this case. The problem with this is that once this case has been decided by a higher court, it becomes controlling precedent upon lower courts. Now, it IS LAW. The court has just created law since lower courts are bound to uphold this principal. The court has created this exception or alternative even though the legislature did not write this nor may have they intended that such an exception ever be applied. The court has just legislated from the bench. A great example would be say....alimony. Say a woman is barred from seeking alimony due to something in the law. If the court wants to award her alimony badly enough, it might make up some exception why the statute barring her from alimony should not apply in this instance. The court will say things like "the legislature must have intended this" or some other such nonsense in their decision. This activity is dangerous in nature because the court is not as directly answerable to the people as the legislature.
2006-12-13 03:10:17 · answer #2 · answered by Robert A 2 · 1⤊ 1⤋
This term was invented by the neocon "right" - the self-styled "Conservatives" to express their disapproval with judgements handed down by the courts.
In general, these "conservatives" forget that the U.S. Government is comprised of three EQUAL branches - the Legislative (Congress), the Executive (President) and the Judicial (Courts).
The neo-conservatives and their pet media pundits have attempted to elevate the office of President from being an EQUAL branch, to being a "superior" branch - against the initial intentions of the writers of the Constitution of the United States.
With this in mind, the neo-conservatives consider that any court ruling that reverses legislation that does not conform to the standards set by the Constitution of the United States, as being "legislating from the bench" because it reverses the "decision" of the President (the current one having styled himself as the "Decider"), rather than acknowledging that the court has simply done it's job as the THIRD EQUAL BRANCH of government in providing the checks and balances that were written into the Constitution of the United States.
2006-12-13 03:03:27 · answer #3 · answered by sewmouse 3 · 2⤊ 1⤋
on a similar time particular Destruction,in spite of each and every thing if Russia had ever attacked us we'd have formally bumped off them from the map. And now that places like Iran are approximately to become nuclear powers we merely could desire the belief works with loopy people too. advert
2016-12-30 08:41:01 · answer #4 · answered by osuch 3 · 0⤊ 0⤋
Legislating from the bench refers to a case where a controversial and politically-charged issue is made legal or illegal by actions of the courts, instead of by Congress.
The phrase is pejorative, in that the speaker usually means to convey that this decision should have been handled by the political process and not the legal one.
The absolute poster-child for this is abortion -- Roe v Wade legalized abortion nationwide, bypassing the political process.
2006-12-13 03:02:37 · answer #5 · answered by Teekno 7 · 1⤊ 3⤋
Definitely a political ploy of the Democrats.
ex. Roe v. Wade
2006-12-13 02:55:51 · answer #6 · answered by Anonymous · 0⤊ 2⤋
Most egregious example I know of was Roe vs Wade.
2006-12-13 03:57:46 · answer #7 · answered by yupchagee 7 · 0⤊ 1⤋
It is a political term
Judges can not legislate, they only determine if new laws are in violation of the constitution
2006-12-13 02:59:54 · answer #8 · answered by Anarchy99 7 · 2⤊ 1⤋
It is same as judicial activism.
Example: Roe v. Wade
2006-12-13 02:55:59 · answer #9 · answered by kingstubborn 6 · 0⤊ 2⤋
Sentencing a child molester to only days in jail or house arrest because they're not very tall and would get in trouble in prison !!!
Do ya need anymore than that ?? Cause there's a whole pile of em !!!!
2006-12-13 02:57:23 · answer #10 · answered by Anonymous · 1⤊ 2⤋