So when is “legislating from the bench” valid, and when not?
I would argue that two conditions must be met. First, it can and should only be done by the Supreme Court. To bestow that power on lower courts invites, if not anarchy, then disrespect for law by the citizenry. Second, any decision that violates stare decisis must be done in order to broaden individual rights and freedoms – the “privileges and immunities” of citizens – that have been improperly restricted by decades of grain-upon-grain infringement.
Someone has to have the power to say “That’s a heap,” and knock it down.
March 6, 2007
Dred Scott and Legislating from the Bench
[This is a difficult question and I am very pleased with the answer Kevin came up with. If you read the entire post you get a better statement of the problem and why this solution is correct. Government power tends to grow and “legislating from the bench” should only be done to reduce that power.–Joe]