Supreme Court Should Legislate from the Bench (8/9/05)
by Dean Hartwell
Republicans have heaped praise on Supreme Court nominee John Roberts, with President Bush saying that Roberts will not “legislate from the bench.” But the Supreme Court has made law throughout our nation’s history, many of them good ones.
We now take it for granted that federal courts have the power and authority to declare federal laws unconstitutional. They do so on a regular basis. It’s a good thing. Can you imagine, for example, a state legislature making slavery legal and getting away with it?
But this power, called judicial review, is not mentioned in the United States Constitution. It was not until 1803 that the Supreme Court, in
Marbury v. Madison, formally recognized judicial review. They had to legislate from the bench to make this determination, which protects our rights under the Constitution.
We are protected from unconstitutional searches and seizures. These are situations when the police, without a warrant or valid exception to the warrant requirement (like imminent destruction of evidence), searches for evidence and takes it to be used at trial against the owner. Evidence seized and searches made in violation of the 4th Amendment to the Constitution may not be used in criminal trials against the person whose interests are affected.
But nowhere in the Constitution does it say that such evidence must be thrown out. If conservative critics of judicial legislation had it their way, police officers could search anywhere at any time in violation of your privacy and even plant evidence that could be used to convict you! It’s a good thing the Supreme Court legislated from the bench and gave us the “Exclusionary Rule” in 1914
(Weeks v. United States).
Many of us can recite the Miranda warning, which tells an arrestee about to be questioned of their right to remain silent and their right to an attorney. It further states that if a person cannot afford counsel, one will be provided for them.
But this requirement of giving an arrestee a warning is not stated in the Constitution, either. The Supreme Court decided that it would be law in
Miranda v. Arizona in 1966. Nor is there any mention of the government providing a lawyer for someone formally accused of a crime. The Supreme Court recognized this right for states in 1963 in
Gideon v. Wainright.
And yet conservatives don’t mention these cases when they complain about judge-made laws. Why is that?
It could be that these decisions have become an integral part of our legal system and are not seriously debated by anyone. Conservatives instead focus their attention on cases where judges and justices have made law they happen to oppose, like
Roe v. Wade (1973).
Such selective opposition to what they term as “judicial activism” is cynical and highly suspect. While it is true, as conservatives complain, that neither the privacy nor abortion rights cited by the
Roe court are listed in the Constitution, the justices made an inference in reading the 14th Amendment’s guarantee that no state shall “deprive any person of…liberty…without due process of law” that states could not make abortion illegal. The same inference has given us many other common sense decisions, including
Griswold v. Connecticut (1965), which gave married couples the right to purchase contraceptives.
It is good that the Supreme Court has made laws for us over the years. In each case, the Court made a reasonable inference of the Constitution. The Democrats asking questions of Judge Roberts at his hearings would be wise to bring these cases up and ask the Judge whether he is interested in protecting our rights.