Should the Supreme Court ever legislate?

[Chris]

The Court is not legislating. It is making a ruling on the Constitutionality of a legal issue brought before them.

In this case, truly, it is not, they are returning the issue to the legislatures. In Roe and Casey they surely did.

[Captdon]

Here is--I think--a most interesting question:

Should the SCOTUS ever--ever--legislate from the bench?

This is especially pertinent now, in light of a leaked draft (from mid-February) indicating a possible overturning of Roe v. Wade.

For the record, I am pro-life.

But what if that were not the case?

What if I did, instead, believe firmly in abortion rights?

Should I then support the High Court's legislating from the bench, in order to secure these (supposed) rights?

The Supreme Court is supposed to be the one non-political branch of government.

Or, at least, so I was always taught.

But am I just being naive?

Comments?

Your opinions don't matter. SCOTUS decides law. That's it.

[Peter1469]

Here is--I think--a most interesting question:

Should the SCOTUS ever--ever--legislate from the bench?

This is especially pertinent now, in light of a leaked draft (from mid-February) indicating a possible overturning of Roe v. Wade.

For the record, I am pro-life.

But what if that were not the case?

What if I did, instead, believe firmly in abortion rights?

Should I then support the High Court's legislating from the bench, in order to secure these (supposed) rights?

The Supreme Court is supposed to be the one non-political branch of government.

Or, at least, so I was always taught.

But am I just being naive?

Comments?

No, SCOTUS doesn't legislate. Congress does. If the draft opinion holds, it will correct that error from 1972.

[Peter1469]

No, but all the lower courts do

They don't have the authority to legislate.

[pjohns]

Your opinions don't matter. SCOTUS decides law. That's it.

Actually, my opinions do matter. Whenever I vote--for president, for senator, or for a representative--my opinion is being expressed.

Just why should that be entirely nullified by a branch that is intended to interpret the Constitution--not to make new law?

[carolina73]

I know that some would say they do not legislate because they do not pass bills but when they make something legal or illegal then it is the same effect.

In 1973 vs 2021 for Roe V Wade, there was no difference in the Constitution. There was only a change in the political makeup of the court. Political decisions are legislation not law. Currently a court is correcting the legislation of the 1973 court. They essentially passed a ban on state bans of abortion.

[pjohns]

The Supreme Court does not "legislate from the bench". The term is born from ignorance and a partisan disinterest in the facts, and is invariably applied by individuals and groups who disagree with a particular ruling.

Humans being...well, being human...it does seem probable that people will be more outraged when there is a confluence of two important matters: (1) the High Court is going beyond its authority; and (2) it is doing so in a way that is antithetical to one's preferences.

But that does not obviate the point, viz: There are two major views as concerning constitutional interpretation: the "Living Document" theory; and the originalist and textualist view.

I hew to the latter. Strongly.

The former implies that the American people, generally, just cannot be trusted to make important decisions, by electing senators and representatives who will do so; therefore, the judiciary must take matters into its own hands.

The usual term for that is a judiocracy.

[Dr. Who]

Here is--I think--a most interesting question:

Should the SCOTUS ever--ever--legislate from the bench?

This is especially pertinent now, in light of a leaked draft (from mid-February) indicating a possible overturning of Roe v. Wade.

For the record, I am pro-life.

But what if that were not the case?

What if I did, instead, believe firmly in abortion rights?

Should I then support the High Court's legislating from the bench, in order to secure these (supposed) rights?

The Supreme Court is supposed to be the one non-political branch of government.

Or, at least, so I was always taught.

But am I just being naive?

Comments?

SCOTUS cannot legislate, all it may do (in terms of legislation) is decide whether or not, in their opinion, legislation that is being challenged and brought before it, does or does not violate the Constitution. How the Justices interpret the Constitution depends on whether they are originalists, textualists, pragmatists, followers of stare decisis or some combination therein.

[Chris]

SCOTUS cannot legislate, all it may do (in terms of legislation) is decide whether or not, in their opinion, legislation that is being challenged and brought before it, does or does not violate the Constitution. How the Justices interpret the Constitution depends on whether they are originalists, textualists, pragmatists, followers of stare decisis or some combination therein.

Then what do you call Roe?

[Dr. Who]

Then what do you call Roe?

Not legislation. The Court, in Roe v. Wade, determined that the Constitution provides a "right to privacy" that protects a pregnant woman's right to choose whether to have an abortion. It also ruled that this right is not absolute and must be balanced against governments' interests in protecting women's health and prenatal life.