What with all the hoopla recently over yet another state making strides toward civil equality, we have heard great celebration from gay activists that the victory for marriage equality in Vermont was achieved through the legislative process. The same happened in Maine, in contrast to how things have played out in Iowa, where the state Supreme Court discovered marriage equality in the Iowa constitution, striking down a law restricting marriage to be between a man and a woman.
While each of these victories is cause for celebration for the LGBT community, and for progressives everywhere, what has me dancing in my chair (like that creepy lady in the car commercial) is how this victory for equality was achieved and how it impacts the bullshit cliché in the subject line above.
Conservatives love to trot this one out, and it sets my teeth on edge, mostly because in my conservative days it made so much sense to me, and I hate to be reminded of the decade of my life I spent being wrong (and a bigot). Without further ado, let us explore why I really hate the phrase “legislate from the bench.”
First, any time someone uses this phrase around you, you should see it as a mark of aggressive ignorance. Like all Republican talking points, it has the benefit of making the speaker sound educated while disguising the truth. Anyone with a passing familiarity with the United States’ founding documents (read: anyone who stayed awake for any length of time during the 8th grade) knows what “legislate” means. Unfortunately, “people who were awake in junior high” and “Republicans” are mutually exclusive groups (see Fig. 1)

Fig. 1, Republicans are dumb
To legislate is a transitive verb meaning “to cover, affect, or create by making or enacting laws.” And putting it simply (sorry to bore those of you who fit in the right-hand portion of the Venn diagram at right), only Congress can make laws. To further belabor my point, the executive branch of our government enforces those laws, and the judicial branch explains them. Most salient to this discussion is the power of the judicial branch to strike down laws by a process of judicial review, a power first given binding authority by the Marshall court in Marbury v. Madison in 1803.
Someone saying that justices are “legislating from the bench,” aside from the statement being a worn, vapid talking point designed to make the speaker sound intelligent and reasonably informed in the absence of both credentials, further betrays a fundamental understanding of both the legislative and judicial functions. The statement cannot be backed up by facts, because none will support it. At best, it is a hasty metaphor requiring a great deal of hand-waving that doesn’t stand up to careful scrutiny.
Second, the statement is inescapably ideological. And by that, I mean that it is a political and social—not a constitutional—complaint. It is not, as Republicans often pretend, an argument for strict constructionism. It is simply a phrase shouted, loudly, by Republican pundits who need shorthand verbiage for feigning the role of the constitutional scholar. It is then parroted by people who mistakenly believe that they are social conservatives because they further believe that saying so excuses them from examining social injustice.
This mindset favors the legislative branch over the judicial, which is understandable to a point. The legislative branch is, prima facie, the most democratic of the U.S. government’s three branches. In fact, many countries privilege the legislative branch above the others based on this perception. However, the framers understood that having hundreds of dictators in Congress would be as bad or worse than having a single dictator on a throne. Thus, the separation of powers, yada yada yada. The judicial branch is a safeguard against tyranny by majority. It assures that there will be a check on the power of any majority formed in Congress, and by extension it protects the rights of minorities from the prejudices of the majority. This is another reason that people who think they are social conservatives hate it: it prevents them from foisting their religious views on everyone else (at least, it protects us from living beneath Mosaic law—so while you don’t have to attend Sunday worship with the Baptists, you can’t go buy beer during the same time slot, least not in Missouri).
Third, this statement is a relic of dirt-old American anti-intellectualism. Now, I’m not suggesting that they should, but in general, people outside the legal professions do not read supreme court opinions. They’re long, boring, and complicated, and they reference a sprawling web of interconnected cases, decisions, laws, and terms that most people do not encounter in any other setting. Also, they’re of necessity written in legalese, a dialect for which most Americans harbor an innate distrust. The most damning of all is the very nature of these opinions. Nuanced reasoning does not fit into talking points or onto bumber stickers. There is no “elevator pitch” possible. When you also consider that the most important decisions can challenge us to reconsider contemporary views on a subject, it is no wonder that the thought of nine old lawyers having the power to pick up a law and discard it, or “discover” things in the Constitution that nobody else has managed to notice, frightens people.
Those frightened people mentioned in the above paragraph should take solace in knowing that their crazy, potsmoking neighbors are not members of the Supreme Court. No, the justices have long, accomplished careers, and they make informed decisions. Also, they can’t just pick up a law and discard it. In most cases, the problem law has to cause a problem first, then somebody has to bring it to a lower court, and the case goes through a very long, expensive process before the Supreme Court hears it. So a new Chief Justice of the Supreme Court can’t just decide that people should be able to marry their pets and bully the other justices into voting on it. At the very least, they are not crazy legislators more concerned with seeking re-election than with preserving freedom. Which brings me to my final point.
The only legitimate complaint I understand about this absurd phrase, “legislating from the bench,” is that Supreme Court justices are not answerable to the people, at least not directly. They can make whatever decisions they like, and their positions are theirs as long as they want to keep them. Well… not in Iowa, the state Republicans point at and shout “legislation from the bench!” True, the people do not select the justices, but they do get to decide if they want to keep them after the first year.
So, in conclusion, Republicans, stop saying it. It doesn’t mean what you think it means, and even if it did, it wouldn’t accurately describe what you like to scare your base into thinking.