Amateur Constitutional Law Q Forum

[bluecrush12]

So I'm reading Griswold v. Connecticut and have a question I was hoping to get feedback on. One of the sentences written by Justice Douglas reads as follows:

"We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions."

My guess is that Douglas is saying that it is not the job of the Supreme Court to make to laws (i.e. that is the job of the legislature). Since I'm a political numbskull and don't know much about the relationship between the judiciary and the legislature, can someone please explain why it is bad for the judges to "legislate from the bench," considering that is what Justice Douglas is talking about here?

Thanks.

[DCDuck]

Our government is set up into three branches, legislative, judicial and executive. The division is important to provide checks and balances on on each branch so one does not become overly powerful. If the judicial branch began legislating, which is the legislatures job, then it will mess up the checks and balances of the system. The judicial job is to interpret laws to ensure that the legislative and executive branches do not exceed their constitutional power, which is important to prevent one branch from becoming tyrannical.

Basically, it goes back to the constitutional role of each branch of government, as established at our founding. Judicial's job is to check the other two branches, the legislature's job is to use the voices of the people, through representatives, to make policy decisions for the country through legislation.

[DCDuck]

Also, Supreme Court judges are not elected and are appointed for life, so there is no check on their power through elections, etc, which makes legislating from the bench dangerous to our republican government.

[stillwater]

yea, the job of the 9 isn't to usurp the legislature's power

[marlborofillet]

Not to hijack this thread, but does anyone know of any good law review articles evaluating the legitimacy of judicial review?

[MinEMorris]

Not to hijack this thread, but does anyone know of any good law review articles evaluating the legitimacy of judicial review?

For student purposes, my guess is that there must be a discussion somewhere in Chereminsky's famous supplement that should be more than sufficient.

As to the OP, I'm really surprised that you're in a conlaw class where the professor decided not to clearly and thoroughly explain the pros and cons of, as you put it, "legislating from the bench." Maybe there's a different approach to Conlaw I that I'm not aware of, but I've always thought that the relationships within and between the three branches constitute the heart and soul of conlaw I. The relationship between the judiciary and the legislature is particularly important and interesting because they share the important role of developing the law and yet are structurally so different. Their structural differences give advantages to each, but also create tension between them. If your professor isn't doing it for you, I think you should definitely do some reading and give some thought to the relationship between the judiciary and legislature. Not only will it greatly assist you in understanding conlaw, but it will also help you quickly understand and predict the judiciary's attitude toward other basic practices, such as statutory interpretation (and mind you, most cases involve interpreting a statute). Again, I'd recommend reading the Chereminsky supplement.

[Mroberts3]

Not to hijack this thread, but does anyone know of any good law review articles evaluating the legitimacy of judicial review?

Not off the top of my head, but I would go to westlawnext and find marbury v. madison. Then go to the citing references and narrow it down to law review articles and see if you can find anything there.

[Mroberts3]

Our government is set up into three branches, legislative, judicial and executive. The division is important to provide checks and balances on on each branch so one does not become overly powerful. If the judicial branch began legislating, which is the legislatures job, then it will mess up the checks and balances of the system. The judicial job is to interpret laws to ensure that the legislative and executive branches do not exceed their constitutional power, which is important to prevent one branch from becoming tyrannical.

Basically, it goes back to the constitutional role of each branch of government, as established at our founding. Judicial's job is to check the other two branches, the legislature's job is to use the voices of the people, through representatives, to make policy decisions for the country through legislation.

This is a great answer to the OPs question. I would just like to add my 0.02 cents on why judges feel the need to point it out so often.

In my personal opinion, it is impossible for judges to not "make law" to some degree or another due to the ambiguous nature of the Constitution/statutes. This makes judges particularly quick to say "whoa, whoa, we aren't making law in this case" because they know how easy it is to fall down that slippery slope. The point is that everyone knows judges "aren't supposed to make law," but I think that it's an impossible standard so we all end up paying lip service to that idea. I'm not even saying that's bad because the alternative is for judges to be honest and say "well the statute is silent here so I'm just going to go with what I think makes the best policy."

[Citizen Genet]

Not to hijack this thread, but does anyone know of any good law review articles evaluating the legitimacy of judicial review?

Jeremey Waldron (a big wig who teaches on multiple continents and is a major liberal thinker) has an excellent piece on the problems of judicial review called "The Core of the Case Against Judicial Review." (See --LinkRemoved--)

Only recently judicial review has emerged as a major topic; the first big battle over it in modern legal thought happened in the 1960s, with Hart and Ely as the major figures. If you want to go down the rabbit hole, start looking at a lot of the work by those two and just check for articles that cite to them.

[romothesavior]

Why is it this way? Because we have a government of enumerated powers and the lawmaking power was delegated to the legislature.

Why don't we want them making laws? Because they aren't elected and, at least in theory, the elected branches are more responsive to the people.

[cinephile]

Because judges are unelected and unaccountable.

[marlborofillet]

For student purposes, my guess is that there must be a discussion somewhere in Chereminsky's famous supplement that should be more than sufficient.

Read it, but thanks.

Not off the top of my head, but I would go to westlawnext and find marbury v. madison. Then go to the citing references and narrow it down to law review articles and see if you can find anything there.

Good idea.

Jeremey Waldron (a big wig who teaches on multiple continents and is a major liberal thinker) has an excellent piece on the problems of judicial review called "The Core of the Case Against Judicial Review." (See --LinkRemoved--)

Only recently judicial review has emerged as a major topic; the first big battle over it in modern legal thought happened in the 1960s, with Hart and Ely as the major figures. If you want to go down the rabbit hole, start looking at a lot of the work by those two and just check for articles that cite to them.

180! Thank you. I suspect my professor will have an essay question on this.

[superpippo]

On the question of the legitimacy of judicial review - Cass Sunstein wrote a very informative book chapter: “Judges and Democracy: The Changing Role of the United States Supreme Court” (on Google Books for free), arguing that the legitimacy of judicial review should be considered in regard to how consistent it is with upholding the democratic process.

Essentially he argues that judges should be activist, when acts created by an elected legislature harm key elements of democracy (e.g. voting equality (Reynolds v. Sims), freedom of speech (Brandenburg v. Ohio), or education (Brown v. Board of Education)).

Sunstein argues that when acts of an elected legislature do not impinge upon the democratic process, the judiciary should err on the side of judicial restraint in order to maintain/respect the power of the people (e.g. McCulloch v. Maryland, the Slaughter-House Cases, and Munn v. Illinois).

Obviously, there are exceptions to both, but I think this general principle is a good one to follow when considering the merits of judicial review/activism.

[jrsbaseball5]

Jeremey Waldron (a big wig who teaches on multiple continents and is a major liberal thinker) has an excellent piece on the problems of judicial review called "The Core of the Case Against Judicial Review." (See --LinkRemoved--)

Only recently judicial review has emerged as a major topic; the first big battle over it in modern legal thought happened in the 1960s, with Hart and Ely as the major figures. If you want to go down the rabbit hole, start looking at a lot of the work by those two and just check for articles that cite to them.

180! Thank you. I suspect my professor will have an essay question on this.[/quote]

This is a pretty interesting article that I had to read for one of my undergrad classes. He's very much a New Zealand homer though and thinks that they got it right while Americans got it wrong.

[marlborofillet]

On the question of the legitimacy of judicial review - Cass Sunstein wrote a very informative book chapter: “Judges and Democracy: The Changing Role of the United States Supreme Court” (on Google Books for free), arguing that the legitimacy of judicial review should be considered in regard to how consistent it is with upholding the democratic process.

Essentially he argues that judges should be activist, when acts created by an elected legislature harm key elements of democracy (e.g. voting equality (Reynolds v. Sims), freedom of speech (Brandenburg v. Ohio), or education (Brown v. Board of Education)).

Sunstein argues that when acts of an elected legislature do not impinge upon the democratic process, the judiciary should err on the side of judicial restraint in order to maintain/respect the power of the people (e.g. McCulloch v. Maryland, the Slaughter-House Cases, and Munn v. Illinois).

Obviously, there are exceptions to both, but I think this general principle is a good one to follow when considering the merits of judicial review/activism.

Tres legit; thanks!

Edit: Sunstein's chapter if anyone else is interested.

[Doorkeeper]

Not to hijack this thread, but does anyone know of any good law review articles evaluating the legitimacy of judicial review?

Waldron's 2007 article in Yale Law Journal and Fallon's 2008 reply in Harvard Law Review is a good place to start.

If you want more expansive readings, check out Dworkin's Law's Empire, Ely's Democracy and Distrust, and Bickel's The Least Dangerous Branch.

[ClubberLang]

On the question of the legitimacy of judicial review - Cass Sunstein wrote a very informative book chapter: “Judges and Democracy: The Changing Role of the United States Supreme Court” (on Google Books for free), arguing that the legitimacy of judicial review should be considered in regard to how consistent it is with upholding the democratic process.

Essentially he argues that judges should be activist, when acts created by an elected legislature harm key elements of democracy (e.g. voting equality (Reynolds v. Sims), freedom of speech (Brandenburg v. Ohio), or education (Brown v. Board of Education)).

Sunstein argues that when acts of an elected legislature do not impinge upon the democratic process, the judiciary should err on the side of judicial restraint in order to maintain/respect the power of the people (e.g. McCulloch v. Maryland, the Slaughter-House Cases, and Munn v. Illinois).

Obviously, there are exceptions to both, but I think this general principle is a good one to follow when considering the merits of judicial review/activism.

You could skip the chapter and just read Carolene products footnote #4. Says exactly the same thing.