Ever since the Civil Rights movement in the 50s, conservatives have decried courts that “legislate from the bench.” Although there is no generally accepted definition of the term, one blogger has succinctly described it as “a combination of at least three elements: (1) a reluctance to stray beyond the constitutional text or a commitment to interpreting the Constitution according to original intent or a combination of both; (2) a posture of judicial deference toward the Legislative and Executive Branches, as well as other government institutions; (3) a respect for precedent and a Burkean view toward making radical changes in the law.”
The landmark abortion decision – Roe v. Wade – is generally considered a prime example of legislating from the bench (sometimes called judicial activism). Instead of allowing the will of the people to be expressed by their elected representatives, the U.S. Supreme Court imposed a one-size-fits-all solution on America. This power play by the Supreme Court did severe damage to its credibility and legitimacy, but the Court eventually recovered to its current high standing in public opinion.
In recent years there has not been a lot of criticism of judicial activism. Ironically, the most publicized charge was made by liberals (who generally thrive on judicial activism) when the U.S. Supreme Court favored George W. Bush over Al Gore in the 2000 election contest. Can you imagine if that result had been
This past week, a complaint about legislating from the bench came from a surprising source. The complaint was prompted by a decision from the U.S. Supreme Court holding that the state of California must reduce the population of its prisons because the current overcrowding violated the Eighth Amendment’s prohibition of cruel & unusual punishment.
The complaint was from none other than Justice Scalia, who in a dissenting opinion wrote that the majority opinion was an example of the problem of courts’ overstepping their constitutional authority and institutional expertise in issuing “structural injunctions” in “institutional-reform litigation” rather than addressing legal violations one by one.
This complaint brings to mind a criticism that I made several months ago about the decision from the U.S. Supreme Court that required Texas public schools to educate illegal immigrants – Plyler v. Doe. The rationale provided by the Court in Plyler decision sounded more like a legislature than a court:
- “Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial ‘shadow population’ of illegal migrants – numbering in the millions – within our borders. This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.”
This language from the Court clearly suggests that its motivation is to ameliorate the consequences of a dysfunctional federal government and its ineffectual immigration policy. The Court in Plyler went on to explain why the Texas law fails to further a substantial goal of the state:
- “First, appellants appear to suggest that the State may seek to protect itself from an influx of illegal immigrants. While a State might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population, 21.031 hardly offers an effective method of dealing with an urgent demographic or economic problem. There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State’s economy. To the contrary, the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc. The dominant incentive for illegal entry into the State of Texas is the availability of employment; few if any illegal immigrants come to this country, or presumably to the State of Texas, in order to avail themselves of a free education. Thus, even making the doubtful assumption that the net impact of illegal aliens on the economy of the State is negative, we think it clear that ‘charging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration,’ at least when compared with the alternative of prohibiting the employment of illegal aliens.”
- “Second, while it is apparent that a State may ‘not . . . reduce expenditures for education by barring [some arbitrarily chosen class of] children from its schools,’ appellants suggest that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State’s ability to provide high-quality public education. But the record in no way supports the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State. As the District Court in No. 80-1934 noted, the State failed to offer any ‘credible supporting evidence that a proportionately small diminution of the funds spent on each child [which might result from devoting some state funds to the education of the excluded group] will have a grave impact on the quality of education.’ And, after reviewing the State’s school financing mechanism, the District Court in No. 80-1538 concluded that barring undocumented children from local schools would not necessarily improve the quality of education provided in those schools. Of course, even if improvement in the quality of education were a likely result of barring some number of children from the schools of the State, the State must support its selection of this group as the appropriate target for exclusion. In terms of educational cost and need, however, undocumented children are ‘basically indistinguishable’ from legally resident alien children.”
Both dot points above contain examples of a court substituting its judgment for the judgment of legislators. The most jarring were the assertions that “few if any illegal immigrants come to this country… to avail themselves of free education” and that “charging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration, at least when compared with the alternative of prohibiting employment of illegal aliens.”
With the benefit of hindsight, these judicial assertions seem ludicrous and laughingly simplistic. Jobs are not the only magnet for illegal immigrants. America also offers free education and medical care, reduced crime, and freedom. It takes a lot of chutzpah for the Supreme Court to criticize legislators for ineffectively controlling immigration, while brazenly shooting-down a good-faith effort by Texas legislators to address the problem.
A recent article in the SA Express-News reveals the mess that the Plyler v. Doe decision exacerbated. The well-written article by Lynn Brezosky, which is titled “University’s student leader in immigration
limbo,” describes a college student in south Texas, Jose Arturo Guerra, who came to America a few years ago and is now facing deportation.
The Plyler court may have been trying to help the “shadow population” of illegal immigrants and trying to avoid the creation of a “permanent underclass,” but they failed miserably. The high school student
whom they required Brownsville to educate was unable to attend an academic competition in Austin because of the danger of immigration checkpoints along the way. Once educated in high school,
the individual was not eligible for federal college loans, and once graduated, is not eligible for legitimate employment.
The Express-News article concludes with three thought-provoking quotes:
- UT-Brownsville President Juliet Garcia: “The plight of these bright, young students that are
prepared to become productive contributors to our society has become a human
- Roy Beck, executive director of the immigration-reduction group Numbers USA, said he sympathized with Guerra but felt “you can’t create policy based on individuals.” Guerra, he said, “will be a tremendous asset to the Mexican people. He’s bright, he’s been allowed to get his education in the United States, he’s benefited from the taxpayer education and high school.”
- Begging to differ is Guerra himself, who thinks he can “make a difference” in the United States. “I don’t see why they would educate people here in the United States and spend like thousands and
thousands of dollars and then send just them back.”
All of this goes to show that legislating is messy, and America would be better served if the Supreme Court stuck to judging.