• Politics

What’s Wrong with Judges Legislating from the Bench?

4 minute read
Jeffrey Rosen

Supreme court confirmation hearings are often dismissed as a kind of ritualized theater that reveals little about the judicial philosophy of nominees. But this stereotype is frequently wrong. From David Souter to John Roberts, many nominees have tended to reveal more of themselves than they expect.

Judge Sonia Sotomayor may have been something of an exception. Like previous nominees, during her confirmation hearings she displayed some aspects of her judicial philosophy–but perhaps not all of them. Adopting a trope more often associated with conservatives than liberals, she said repeatedly that judges should simply apply the law, not legislate from the bench. “My judicial philosophy,” she declared in her opening statement, is simple: “fidelity to the law. The task of a judge is not to make law. It is to apply the law.” And as if to dispel any impression that this was rhetorical boilerplate, Sotomayor returned to the same theme throughout the hearings.

Sotomayor is right that much of her record demonstrates her opposition to judicial policymaking. In some of her opinions as an appellate judge, she sounds like Justice Antonin Scalia in her insistence that judges should avoid policy considerations at all costs. “The duty of a judge is to follow the law, not to question its plain terms,” Sotomayor wrote in a 2006 dissent. “I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.”

Sotomayor’s sincere opposition to judicial lawmaking should reassure conservatives who fear that she might be an empathy-driven activist intent on legislating from the bench and imposing her vision of identity politics on an unwilling nation. But is Sotomayor telling the whole story when she says Supreme Court Justices shouldn’t–and don’t–make policy? It’s too bad that neither Sotomayor nor any of the Senators felt at liberty to say what many scholars and court observers believe to be true: Justices often legislate from the bench, and sometimes that’s a good thing.

The idea that the Supreme Court can make policy shouldn’t be controversial after its decisions in two of the most contentious cases of the term that ended last month, one involving voting rights and the other affirmative action. In the voting-rights case, Chief Justice John Roberts produced the most impressive example of judicial statesmanship of his tenure by persuading all but one of his fellow Justices to converge around a result that never occurred to Congress when it passed the Voting Rights Act in 1965. A prudent demonstration of judicial policymaking, the decision was widely praised by liberals and conservatives for inviting a dialogue with Congress and avoiding a high-stakes confrontation over the constitutionality of the Voting Rights Act.

And in Ricci v. DeStefano, the closely watched affirmative-action case, the court was criticized by liberals–and praised by conservatives–for inventing a new legal standard to determine when cities can throw out promotion exams that have discriminatory effects on minority firefighters. Whether or not you like the decision, there’s no question that the court was making policy, coming up with a pragmatic rule that Congress never passed on its own.

Why couldn’t Sotomayor acknowledge that Justices often legislate from the bench? She cited as her judicial hero Justice Benjamin Cardozo, who served on the Supreme Court from 1932 to 1938. Sotomayor praised Cardozo for his “great respect for precedent and his great respect … and deference to the Legislative Branch.” But Cardozo wasn’t always an advocate of judicial deference. In his most famous book, The Nature of the Judicial Process, Cardozo called a chapter “The Judge as a Legislator.” Like legislators, Cardozo wrote, judges must get their experience “from life itself,” and when the law isn’t clear, a judge must sometimes “pronounce judgment … according to the rules which he would establish if he were to assume the part of a legislator.”

In some of her speeches, Sotomayor seems to acknowledge that courts sometimes play a policymaking role. But her testimony and judicial opinions suggest that judges should avoid legislating from the bench at all costs. That should mollify those who worry that she will be swayed by empathy rather than the Constitution, but it’s a less-than-complete description of how judges actually behave–or perhaps what she herself believes. At this point in our polarized judicial politics, it’s too bad that Senators and Supreme Court nominees can’t say in public what many of them recognize in private: Of course judges–both liberal and conservative–legislate from the bench, and on occasion, they even do it well.

Rosen, a law professor at GWU, wrote The Supreme Court: The Personalities and Rivalries That Defined America

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