In a piece entitled The GOP's Judicial Hypocrisy, Tomasky argues that conservatives who are usually the first to complain about "legislating from the bench" are now hoping for exactly that from the Supreme Court, with regard to the case of the Affordable Care Act (Obamacare):
As Dwight K. Schrute says, Kuh-westion: What is the single worst thing a judge can do, according to conservatives? No, not make crude comments to female aides about porn videos. That nets out a rather dandy plus, as we know. To the right, the single worst thing a judge can do is “legislate from the bench.” So it’s worth noting that what conservatives want five Supreme Court justices to do with regard to the Affordable Care Act is ... legislate from the bench.A spiffy opening, to be sure, but followed mostly by frantic arm-waving, faulty analogies, and a deeply flawed understanding of what--exactly--"legislating from the bench" entails.
It's now a common turn of the phrase, but it would seem that the original sense of it--extending back to the 19th century--is no longer quite so commonly understood. To be fair, both "legislating from the bench" and it's brother term "judicial activism" have been overused as criticisms in recent decades, but then that is partly the fault of people like Tomasky, who use one or the other--or both--with no real understanding of what they are saying.
So let me clear it up.
The basic idea is that the judicial branch should not be driven by policy and should not be engaged in policy-making, that it should accept the Constitution and the laws made by the legislature as they are, with regard to the original intent. Of course, there is a caveat: the Constitution is supreme, thus the implied power of Judicial Review, wherein the Supreme Court can determine the constitutionality of a law. For instance, the Constitution very clearly confers to the citizenry a right to "keep and bear arms," thus any law made by the legislature should not infringe on this right. If a law does, then it is the Court's duty to strike that law down. Simple, really.
But this is not "legislating from the bench." It just isn't. It's the accepted and proper function of the Court, no more, no less.
What is "legislating form the bench," you ask? Well, consider the Kelo decision. In that case, the Court found that property could be taken from one private individual and given to another--via the use of eminent domain--based on the assumption that increasing tax revenues and economic growth both qualified as "public use," per the 5th Amendment. The problem of course is that this requires a great leap in logic, given that the 5th reads thusly:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.Clearly, the meaning of the phase "public use" is exactly what it appears to be: public use. As in for a school, or a fire station, or a freeway. For--in other words--use by the public at large or for the clear benefit of the public at large. And nothing about it suggests that this would include taking from one private individual to give to another private individual.
In order to allow such an action, the Court had to manufacture an argument, wherein the clear meaning of the 5th could be warped into something else. And that something else is a product of the personal opinions and ideologies of the five Justices who ruled in favor of the confiscation of private property in this case.
But I don't want to rehash the whole thing. The point is that this is legislating from the bench, is judicial activism.
The hoped for outcome on the right for Obamacare is that the Court will find a mandate by the legislature requiring private individuals to pay for services (health insurance) provided by other private concerns to be unconstitutional on its face, for very much the same reasons that were given by the minority in Kelo v. New London. Justice Sandra Day O'Connor--writing the dissent for the minority in that case--opened with a classic quote from Justice Chase:
An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority...A few instances will suffice to explain what I mean...[A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.Thus, the point is that the legislature did what they were not empowered to do. And the Court had--and has--the responsibility to point is out when it occurred or occurs.
It's really not rocket science. The problem is--for the left--that claims of "judicial activism" and "legislating from the bench" have become powerful tools and the left desperately wants to carve itself out a piece of that pie. Thus, pseudo-thinkers like Tomasky seek to invoke such terms, even when they are not apropos, hoping that no one will notice the lack of proper analysis and argument behind their claims.
It's actually a little sad to watch. Tomasky may actually believe he has a valid point (though I doubt it) and is likely patting himself on the back for this clever analysis. Meanwhile, people with a clue point and laugh.