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Legislating from the bench is another way of describing when a court overreaches their Article III (...in the Constitution, Separation of Powers...) authority and creates law. The court's job is to interpret the Constitution and apply law (either from Congress, the Constitution, or common law) to the facts of the case at hand. If Congress passes a law that violates a Constitutional right, it is the Court's job to overturn the law as soon as it becomes a relevant case or controversy before them. In other words, the Court may not overturn an unconstitutional law until it is made an issue before them (somebody suing as a result of the law, etc.) If Congress passes a law that does not violate the Constitution, the Court has no right to overturn the law, even if they are against the law itself: their only job in that instance is to take the law and apply it to the present issue. Sometimes however, Courts will impose their own opinions and beliefs onto the law, rather than simply determining what was meant by the law. In these cases, the Court is said to be "legislating from the bench." Sometimes this is called acting as a super-legislature. Courts determined they had a right to "Judicial Review" in a case called Marbury v. Madison, and since then, the level of this review (referred to as Judicial Activism when the Court is being too aggressive, and Judicial Restraint when they are being too passive,) has been constantly criticized by whomever is being negatively impacted by a particular decision. The Constitution is the ultimate law. No laws are able to violate this document. After the Constitution is Federal Law, created by Congress. No State laws may violate Federal Laws, which in turn can't violate the Constitution. Some relevant cases on this issue may be: Marbury v. Madison, Brown v. Board of Education (I and II), Dred Scott, Roe v. Wade, McCulloch v. Maryland, Lochner v. New York, and Korematsu v. United States. Also: searches on "Judicial Activisim," "Judicial Restraint," and "Separation of Powers," may all yield helpful information!

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15y ago
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12y ago

An activist court is said to be legislating from the bench when it makes decisions that change existing law by its own interpretation of those laws or by the way it directs implementation of its decisions. For example, at one time the court had ruled that separate public facilities for different races did not violate the equal protection clause of the Constitutionseparate as long as they were equal. This was a strict reading of the Constitution in that the court saw nothing in the Constitution that prohibitted it. Later, the court reversed itself in another case and ruled that separate facilities were inherently unequal and did violate the Constitution. This was an activist reading of the Constitution because the court essentially changed the contitutionality of laws permitting segregation even though not one word of the Constitution had changed or any law forbidding segregation adopted. Some looked at the court's decision as being its own amendment to the Constitution or federal law.

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12y ago

"Legislating from the bench" occurs when a judge delivers a court ruling that goes beyond existing laws. A judge is supposed to pass judgment on the basis of only existing laws and precedents, and is not supposed to create new laws either directly or indirectly. The right to create new laws is constitutionally reserved only for legislative bodies, and not the courts.

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15y ago

it means to fart on the bench while leaving

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Q: What is the meaning of legislating from the bench?
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