Do Judges Legislate from the Bench? What's Your Ruling?

Judge Neil Gorsuch, President Trump’s nominee to fill a vacant seat on the Supreme Court of the United States, will face a contentious vetting process in the U.S. Senate. I expect the sausage-making process to be an opportunity for political grandstanding where bombastic bloviators will spew forth partisan pabulum. Look for a senator, for example, to point out that the judge did not clean up after his dog when he was in the 7^th grade. “If we can’t trust you to clean up after Sparky, then how can we trust you to mind the Constitution?”

We read and hear about the scourge of judicial activism (JA), where judges invent laws rather than interpret existing law, as they are charged to do. The antidote to judicial activism is judicial restraint (JR), when judges exercise modesty and base their rulings on the intent of the framers or on the words in the statute. If, for example, the statute does not specify that “the puppies shall be saved”, then it is not for the judge, who may be a dog lover, to take on canine rescue as a ‘pet project’.

Let me define JA and JR more clearly for readers who do not wallow in the judicial universe.

Judicial Activism: A ruling that is disliked by various individuals and interests.

Judicial Restraint: A ruling that is celebrated by various individuals and interests.

If a judge rules for your cause, then he or she is a titan on the bench. If however, you did not receive your desired judicial outcome, then the judge is an activist hack who is legislating from the bench. I am generalizing, of course, but you get the point.

A Den of Activism?

How has the judicial branch been performing? A lot better than the other two branches, in my view. Here’s some rough polling data.

Approval Rating

Trump 38% (2017)

Congress 28% ((2017 – Surging -up 9 points in 1 month!)

Supreme Court 42% (2016)

Let’s not read more into this than the numbers merit. Negative poll numbers do not mean that an individual or an institution is not performing well. It simply means that the public is dissatisfied. If Congress, for example, passes a law eliminating the deductibility of home mortgages, which may be a sound public policy measure, don’t look for an upward spike in poll numbers.

Hopefully, this blog, at least from time to time, polls well with readers. What’s your ruling? Of course, if I don’t like it, I will merely label you as an Activist Reader!

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