What is "judicial over-reach"?

I have heard this over the years, and am not quite sure what it means. I have heard complaints that many judges are "activist" judges, or that they "legislate from the bench". But it seems that they only say this when the judges make decisions they don't agree with. My question is: do they have a choice but legislate from the bench in each new situation?

The reason we have the judicial branch as the third branch of government is that as conditions change- such as with new science and technology or new situations which the current law does not currently address specifically, we need this branch of government to make decisions on what the law SHOULD say. By offering an interpretation, they are in effect legislating. Of course, to do this, they are required to look at the current law, and look at the precedents set by previous court cases. But ultimately, the reason these cases come up is that it has never been addressed before. Ultimately, some judgment is going to be required. And once the judgment is made, it is NEW LAW. The precedent becomes the basis of other decisions related to it. That is in effect "legislating from the bench". That is how the system is set up.

Am I not understanding this correctly? If you think there are examples of "judicial overreach" where judges "legislate from the bench" in a way they are not supposed to, please give some examples and why you would say it's different than other precedent-setting decisions judges have to make.

ataraxia said:

The reason we have the judicial branch as the third branch of government is that as conditions change- such as with new science and technology or new situations which the current law does not currently address specifically, we need this branch of government to make decisions on what the law SHOULD say.

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No, that is NOT the reason we have a judicial branch, but you answered your own question by writing this.

The judicial branch is there to adjudicate the existing rules, not make up new ones.

Harshaw said:

No, that is NOT the reason we have a judicial branch, but you answered your own question by writing this.

The judicial branch is there to adjudicate the existing rules, not make up new ones.

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They have to make a judgment call about whether existing rules apply to a given situation. In that way new layers of precedent are formed.

Amelia said:

They have to make a judgment call about whether existing rules apply to a given situation. In that way new layers of precedent are formed.

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Inasmuch as that is true, that's normal judicial function. "Precedent" is about applying the rules consistently, not making new law.

What it is NOT is what ataraxia described. It is NOT declaring "what the law SHOULD say." That's not for a court to do. If it does, then it's overreaching.

Harshaw said:

Inasmuch as that is true, that's normal judicial function. "Precedent" is about applying the rules consistently, not making new law.

What it is NOT is what ataraxia described. It is NOT declaring "what the law SHOULD say." That's not for a court to do. If it does, then it's overreaching.

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Well, do you have any examples of this judicial overreach? (I could think of one or more. Such as when Roberts basically changed the law in order to allow Obamacare to stand.) Do you have any other examples.

Amelia said:

Well, do you have any examples of this judicial overreach? (I could think of one or more. Such as when Roberts basically changed the law in order to allow Obamacare to stand.) Do you have any other examples.

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:shrug: Sure, that's a possible example, but I don't really need any for this thread. The terms were set by ataraxia's own post, and in his own post, he described judicial overreach, which answered his own question.

Harshaw said:

:shrug: Sure, that's a possible example, but I don't really need any for this thread. The terms were set by ataraxia's own post, and in his own post, he described judicial overreach, which answered his own question.

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The way I read the post, he was asking what the grounds are for people's outrage about judicial outreach?

Is it a strawman used simply to fire up the troops, or is it a real concern?


It's sad to let semantics get in the way of addressing what is supposedly an issue of major concern. Are there grounds for the concern? How frequently do judges legislate from the bench?

Harshaw said:

No, that is NOT the reason we have a judicial branch, but you answered your own question by writing this.

The judicial branch is there to adjudicate the existing rules, not make up new ones.

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But there will always be new technologies and new situations which require either new rules, or new legal precedent to address them. The founding fathers knew this, and that's why they set up the legal system with a system of precedent.

Harshaw said:

:shrug: Sure, that's a possible example, but I don't really need any for this thread. The terms were set by ataraxia's own post, and in his own post, he described judicial overreach, which answered his own question.

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Well, I was just using the critics' own language to describe it. What I want to know is at what point is it "overreach", and at what point is it judges just doing their job: setting precedent in a situation not previously encountered.

ataraxia said:

But there will always be new technologies and new situations which require either new rules, or new legal precedent to address them. The founding fathers knew this, and that's why they set up the legal system with a system of precedent.

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The Founding Fathers didn't set up the judicial system with a "system of precedent."

Precedent was something that had developed in the English common law system for 550 years before the Founding.

"Precedent" is not a means to create new law. Precedent, as I already noted, is a means of applying the law consistently.

Now, there IS common law, but that exists only within the gaps of statutory law. If the law is unclear, then courts, in a common law system, have some room to clarify the law insofar as how courts will interpret them.

It's not "this is what the law should be," but "in the absence of clarity, this is how we're going to treat it unless and until the legislature does clarify it." It's done within the bounds of the written law. Any such court decision can therefore be overruled by new statutory law.

There is, by the way, specifically no federal common law.

ataraxia said:

I have heard this over the years, and am not quite sure what it means. I have heard complaints that many judges are "activist" judges, or that they "legislate from the bench". But it seems that they only say this when the judges make decisions they don't agree with. My question is: do they have a choice but legislate from the bench in each new situation?

The reason we have the judicial branch as the third branch of government is that as conditions change- such as with new science and technology or new situations which the current law does not currently address specifically, we need this branch of government to make decisions on what the law SHOULD say. By offering an interpretation, they are in effect legislating. Of course, to do this, they are required to look at the current law, and look at the precedents set by previous court cases. But ultimately, the reason these cases come up is that it has never been addressed before. Ultimately, some judgment is going to be required. And once the judgment is made, it is NEW LAW. The precedent becomes the basis of other decisions related to it. That is in effect "legislating from the bench". That is how the system is set up.

Am I not understanding this correctly? If you think there are examples of "judicial overreach" where judges "legislate from the bench" in a way they are not supposed to, please give some examples and why you would say it's different than other precedent-setting decisions judges have to make.

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Take a look through case law. While you are at it examine administrative law. Neither are meant to be occurring---the legislatures at various levels are supposed to be the sole origination for US law. The judiciary was meant to accept or reject legislation as constitutional or unconstitutional, not decide intent and meaning and interpret what laws should and should not do. That's meant to be decided by the legislatures.

ataraxia said:

Well, I was just using the critics' own language to describe it. What I want to know is at what point is it "overreach", and at what point is it judges just doing their job: setting precedent in a situation not previously encountered.

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What you described definitely is, saying what the law "should be" instead of applying the law (as best they can) as written.

From a recent unanimous Supreme Court decision:

And while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced.

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In other words, it's not a court's place to do what you say. It has to deal with the law as it is, not as they think it should be.

Harshaw said:

The Founding Fathers didn't set up the judicial system with a "system of precedent."

Precedent was something that had developed in the English common law system for 550 years before the Founding.

"Precedent" is not a means to create new law. Precedent, as I already noted, is a means of applying the law consistently.

Now, there IS common law, but that exists only within the gaps of statutory law. If the law is unclear, then courts, in a common law system, have some room to clarify the law insofar as how courts will interpret them.

It's not "this is what the law should be," but "in the absence of clarity, this is how we're going to treat it unless and until the legislature does clarify it." It's done within the bounds of the written law. Any such court decision can therefore be overruled by new statutory law.

There is, by the way, specifically no federal common law.

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It’s an extension of the law into new, previously unexplored territory. It takes some judgment, ie it’s not clear cut. You make it sound like iy should be obvious what the. judgment is going to be anytime a new case dealing with new issues is brought into court. If it was, you would not need a court.

ataraxia said:

It’s an extension of the law into new, previously unexplored territory. It takes some judgment, ie it’s not clear cut. You make it sound like iy should be obvious what the. judgment is going to be anytime a new case dealing with new issues is brought into court. If it was, you would not need a court.

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What you yourself described:

ataraxia said:

The reason we have the judicial branch as the third branch of government is that as conditions change- such as with new science and technology or new situations which the current law does not currently address specifically, we need this branch of government to make decisions on what the law SHOULD say.

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IS clear-cut judicial overreach.

Dealing with inevitable ambiguity within written law is not that.

If there is NO LAW covering something new -- I dunno, cryptocurrency or something -- then there's nothing for a court to do. If they try to, then they're overreaching.

ataraxia said:

...

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Anything that the Judicial Branch does that is outside of the powers delineated within Article 3 (or any applicable amendments) of the US Constitution is "judicial overreach". This includes the Marbury v. Madison case where the judicial branch gave themselves 'power of interpretation' which was never Constitutionally given to them.

Because of that, people think that they don't have the ability to interpret the Constitution by simply reading it, and that it is some "sacred document", off limits to them, that only the judicial branch has the "wisdom" and "authority" to interpret...

This is absolute nonsense... I have the ability to read the Constitution for myself and know what it says... I don't need some judge to tell me what it says...

gfm7175 said:

Anything that the Judicial Branch does that is outside of the powers delineated within Article 3 (or any applicable amendments) of the US Constitution is "judicial overreach". This includes the Marbury v. Madison case where the judicial branch gave themselves 'power of interpretation' which was never Constitutionally given to them.

Because of that, people think that they don't have the ability to interpret the Constitution by simply reading it, and that it is some "sacred document", off limits to them, that only the judicial branch has the "wisdom" and "authority" to interpret...

This is absolute nonsense... I have the ability to read the Constitution for myself and know what it says... I don't need some judge to tell me what it says...

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I don't know if it's that simple. Let's use a controversial example: the second amendment phrase "the right to arms shall not be infringed".

This was written before the advent of nuclear arms. Somewhere along the line, someone decided that nuclear arms were not the kind of arms that the 2nd Amendment should apply to. But if it was as simple as just reading the Constitution, then nuclear ordnances should be made available to the public. Is this ban on nuclear arms unconstitutional?

And even using less extreme examples, we have limited "arms" to mean what a foot soldier can carry. And even with that, that full autos are still off limits. As Antonin Scalia wrote in the DC vs. Heller case:

“Like most rights, the right secured by the Second Amendment is not unlimited…”. It is “…not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms...

“We also recognize another important limitation on the right to keep and carry arms. Miller (an earlier case) said, as we have explained, that the sorts of weapons protected were those “in common use at the time”. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ ”

The court even recognizes a long-standing judicial precedent “…to consider… prohibitions on carrying concealed weapons.”
-Antonin Scalia

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So was Scalia being an "activist judge" in putting all these qualifications and infringements on what is so clearly written in the 2nd amendment? Was he right in saying private citizens could own guns for PERSONAL defense, despite the amendment’s opening language - “A well regulated militia being necessary to the security of a free state, ” - which pretty clearly says that gun ownership was specifically preserved by the founding fathers in the interest of the common defense against a tyrannical government (remember, this was the issue on their minds back then)?

These are all difficult questions, aren't they? What I gather from reading all this is different than what you gather. And part of it is because when the second amendment was written, they didn't have full autos, or nuclear ordnances. JUDGES have to make a judgment call on whether the second amendment applies ONLY to the COMMON defense or PERSONAL defense, on whether it applies to full autos and grenade launchers and flame throwers, or biological and nuclear arms are included.

Now, weapons technology is constantly evolving. Think about a future that there can be a weapon, carriable by a common foot soldier, which you point at a building, mall, or school, and by pulling the trigger you instantly sterilize it of all life- a kind of "death ray" (I think Nikola Tesla was actually working on something like this before he died).

Don't you think with this evolving new technology, there have to be some judgment calls made on its availability to the general public? Or do we just read the Constitution where it say the right to arms shall not be infringed, and just put it on sale at Wal-Mart?

Harshaw said:

Inasmuch as that is true, that's normal judicial function. "Precedent" is about applying the rules consistently, not making new law.

What it is NOT is what ataraxia described. It is NOT declaring "what the law SHOULD say." That's not for a court to do. If it does, then it's overreaching.

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There is a trend among some to view decisions by the courts as confirmations of existing consensus. In cases where the courts rule 9-0, that is exactly what happens. However, many very difficult cases are won 5-4. That means 4 judges disagreed on constitutional law with the other 5. If you like the decision, you will claim it is confirming existing consensus. If you do not, you can either argue the merits or declare in ignorance that it is new law or fabricated. I confess that I have been on both sides myself. I believe same sex marriage was decided correctly. I also believe Scalia made up Heller from his own biases. But the law is the law and part of our bargain together is that we accept the courts as the final arbiter. If we do not like precedent, we can vote to change the law or get new judges on the courts. To make the claim that one side or the other represents some universally truthful ideology is a mistake. There is no objective truth in many of these cases that are decided by one vote. This is exactly why the GOP stole a seat. This is why they put Federalist Society and Heritage Foundation judges on the courts. They know a priori how they will judge because their positions have been staked out over decades. The left really has nothing to compare with the lawyer mills of the right wing. This was set up in the 70s to put conservatives in a position sometime in the future to control the bench. It was a backlash against traitors to the party like Earl Warren who ended up being one of the most important Chief Justices of all time. Thank God for Earl Warren.

Vadinho said:

There is a trend among some to view decisions by the courts as confirmations of existing consensus. In cases where the courts rule 9-0, that is exactly what happens. However, many very difficult cases are won 5-4. That means 4 judges disagreed on constitutional law with the other 5. If you like the decision, you will claim it is confirming existing consensus. If you do not, you can either argue the merits or declare in ignorance that it is new law or fabricated. I confess that I have been on both sides myself. I believe same sex marriage was decided correctly. I also believe Scalia made up Heller from his own biases. But the law is the law and part of our bargain together is that we accept the courts as the final arbiter. If we do not like precedent, we can vote to change the law or get new judges on the courts. To make the claim that one side or the other represents some universally truthful ideology is a mistake. There is no objective truth in many of these cases that are decided by one vote. This is exactly why the GOP stole a seat. This is why they put Federalist Society and Heritage Foundation judges on the courts. They know a priori how they will judge because their positions have been staked out over decades. The left really has nothing to compare with the lawyer mills of the right wing. This was set up in the 70s to put conservatives in a position sometime in the future to control the bench. It was a backlash against traitors to the party like Earl Warren who ended up being one of the most important Chief Justices of all time. Thank God for Earl Warren.

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Extending the Bill of Rights to the federal level is a good example of the Supreme Court basically rewriting the Constitution.

Constitution said Congress couldn't make laws infringing upon our basic rights. SCOTUS saying that states and local communities weren't allowed to do that either is completely out of the bounds of the Constitution.

While I appreciate that states are restricted from tromping on my freedom of expression and religion, it was still overreach for SCOTUS to make that the national law. Same with gun rights. SCOTUS taking that out of states' hands was overreach.

gfm7175 said:

Anything that the Judicial Branch does that is outside of the powers delineated within Article 3 (or any applicable amendments) of the US Constitution is "judicial overreach". This includes the Marbury v. Madison case where the judicial branch gave themselves 'power of interpretation' which was never Constitutionally given to them.

Because of that, people think that they don't have the ability to interpret the Constitution by simply reading it, and that it is some "sacred document", off limits to them, that only the judicial branch has the "wisdom" and "authority" to interpret...

This is absolute nonsense... I have the ability to read the Constitution for myself and know what it says... I don't need some judge to tell me what it says...

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If you are now saying that Marbury was wrongly decided then you have basically said the Supreme Court and our government since 1803 has been unconstitutional. That is preposterous on the face of it. You cannot read the law and understand it well enough to be the judge on matters before the Supreme Court. That is arrogance worthy of the Mango Mussolini. It takes years of study to understand our legal system, that is why we have law schools and bar exams. My lord.

Vadinho said:

If you are now saying that Marbury was wrongly decided then you have basically said the Supreme Court and our government since 1803 has been unconstitutional.

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Correct.

Vadinho said:

That is preposterous on the face of it.

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Not at all. I can read the Constitution for myself.

Vadinho said:

You cannot read the law and understand it well enough to be the judge on matters before the Supreme Court.

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Yeah, I haven't made a career out of it... So?

Vadinho said:

That is arrogance worthy of the Mango Mussolini.

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No, it's called being able to read and comprehend a document for myself.

Vadinho said:

It takes years of study to understand our legal system, that is why we have law schools and bar exams. My lord.

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Never claimed to be an expert on all things legal... Not even people who study the legal system as a whole are experts on all things legal.

Yet, myself not being a "legal expert" does not mean that I can't pick up a copy of the Constitution and read it...

ataraxia said:

I don't know if it's that simple.

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It is.

ataraxia said:

Let's use a controversial example: the second amendment phrase "the right to arms shall not be infringed".

This was written before the advent of nuclear arms. Somewhere along the line, someone decided that nuclear arms were not the kind of arms that the 2nd Amendment should apply to. But if it was as simple as just reading the Constitution, then nuclear ordnances should be made available to the public. Is this ban on nuclear arms unconstitutional?

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See the 10th Amendment.

ataraxia said:

And even using less extreme examples, we have limited "arms" to mean what a foot soldier can carry. And even with that, that full autos are still off limits. As Antonin Scalia wrote in the DC vs. Heller case:

So was Scalia being an "activist judge" in putting all these qualifications and infringements on what is so clearly written in the 2nd amendment? Was he right in saying private citizens could own guns for PERSONAL defense, despite the amendment’s opening language - “A well regulated militia being necessary to the security of a free state, ” - which pretty clearly says that gun ownership was specifically preserved by the founding fathers in the interest of the common defense against a tyrannical government (remember, this was the issue on their minds back then)?

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I generally agree with DC vs Heller. I don't agree with every little word that Scalia asserted.

ataraxia said:

These are all difficult questions, aren't they?

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Not really...

ataraxia said:

What I gather from reading all this is different than what you gather. And part of it is because when the second amendment was written, they didn't have full autos, or nuclear ordnances.

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Irrelevant... Article 5 of the US Constitution is there for a reason... Also, once again, See the 10th Amendment.

ataraxia said:

JUDGES have to make a judgment call on whether the second amendment applies ONLY to the COMMON defense or PERSONAL defense, on whether it applies to full autos and grenade launchers and flame throwers, or biological and nuclear arms are included.

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No, they don't. That is overstepping their bounds. They have no Constitutional power to "interpret" the Constitution. The 2nd Amendment applies to militia and personal defense, as it says it does.

ataraxia said:

Now, weapons technology is constantly evolving. Think about a future that there can be a weapon, carriable by a common foot soldier, which you point at a building, mall, or school, and by pulling the trigger you instantly sterilize it of all life- a kind of "death ray" (I think Nikola Tesla was actually working on something like this before he died).

Don't you think with this evolving new technology, there have to be some judgment calls made on its availability to the general public? Or do we just read the Constitution where it say the right to arms shall not be infringed, and just put it on sale at Wal-Mart?

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Once again, See Article 5 and the 10th Amendment...

They were put in there for a reason...

ataraxia said:

I have heard this over the years, and am not quite sure what it means. I have heard complaints that many judges are "activist" judges, or that they "legislate from the bench". But it seems that they only say this when the judges make decisions they don't agree with. My question is: do they have a choice but legislate from the bench in each new situation?

The reason we have the judicial branch as the third branch of government is that as conditions change- such as with new science and technology or new situations which the current law does not currently address specifically, we need this branch of government to make decisions on what the law SHOULD say. By offering an interpretation, they are in effect legislating. Of course, to do this, they are required to look at the current law, and look at the precedents set by previous court cases. But ultimately, the reason these cases come up is that it has never been addressed before. Ultimately, some judgment is going to be required. And once the judgment is made, it is NEW LAW. The precedent becomes the basis of other decisions related to it. That is in effect "legislating from the bench". That is how the system is set up.

Am I not understanding this correctly? If you think there are examples of "judicial overreach" where judges "legislate from the bench" in a way they are not supposed to, please give some examples and why you would say it's different than other precedent-setting decisions judges have to make.

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You are so far out in the weeds with this.

Judicial adjudicates existing laws....they do not create them

The question is subjective because defining “overreach” is problematic. The majority of activist decisions could fit that label depending on ones politics. Striking down a state or federal law is an incredible power for the judiciary to wield. At times it’s completely justified, when laws being passed blatantly violate the text of the constitution. The flip side is judicial restraint or deference. The argument being it’s up to the people to push their elected reps to change the law vs going to the SC. The Griswold decision is a good example of the conundrum.

gfm7175 said:

No, they don't. That is overstepping their bounds. They have no Constitutional power to "interpret" the Constitution. The 2nd Amendment applies to militia and personal defense, as it says it does.

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Where does the 2nd Amendment say anything about personal defense? It specifically only mentions the militia- collective defense.

Irrelevant... Article 5 of the US Constitution is there for a reason... Also, once again, See the 10th Amendment.

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The 10th amendment is talking about things not specifically mentioned in the Constitution having to be decided by the states. But the right to arms is in the Constitution already. The 2nd Amendment specifically states that the right to arms shall not be infringed. So, taking your fundamentalist reading of the Constitution, if any state prohibits the sale of nuclear arms to the public, it would be unconstitutional. Correct?

Hey, I am just following your logic.

I generally agree with DC vs Heller. I don't agree with every little word that Scalia asserted.

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So if you disagree with Antonin Scalia, you are right and he is wrong? And that should be obvious to us all if we just read the Constitution?

I am going to call Trump and let him know we have found his next SCOTUS nominee- better than even Scalia!
:lamo

gfm7175 said:

Correct.


Not at all. I can read the Constitution for myself.


Yeah, I haven't made a career out of it... So?


No, it's called being able to read and comprehend a document for myself.


Never claimed to be an expert on all things legal... Not even people who study the legal system as a whole are experts on all things legal.

Yet, myself not being a "legal expert" does not mean that I can't pick up a copy of the Constitution and read it...

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My bet is you voted for Trump given your level of knowledge.