Legislating from the bench is a good way to describe judicial activism. Judicial activism occurs when a Judge or Justice decides an issue based on personal or political ideology or pressure from special interests instead of abiding by the Constitution and/or previous precedent. The United States has a system of checks and balances to insure that one branch of the federal government will not become too powerful. Under the separation of powers doctrine, only Congress has the power to legislate. Judicial activism violates that separation of powers by effectively creating new law that often affects the entire nation instead of settling the particular case at hand.

It makes sense that the judiciary, which is appointed rather than elected and held accountable by the people, does not have the ability to legislate. When judicial activism occurs, it is a usurpation of power. In other words, judicial activism means a Justice oversteps the jurisdiction of the Court or creates a ruling that radically diverges from common law, jurisprudence, and the intent of the Constitution. Judicial activism may also be a case of Judges or Justices overruling existing law or creating legal doctrines without precedent or support, which undermine or recreate policy, usually social policy.

While a judge who engages in judicial activism does not technically write a law, he or she often creates the same effect by handing down a ruling that allows or prohibits a certain action. Take abortion, a very controversial issue, for example. Roe v. Wade created a right for women to have abortions, which soon became the law of the land. There is no rationale for such a right, just as there is no support found in the Constitution for a nationwide ban.

Abortion is a state’s rights issue, because it is not addressed in the Constitution, and therefore should have been decided by the states individually. Whether you agree with abortion or not isn’t the question, nor is party affiliation. Both sides are guilty of judicial activism. The real issue is that one court does not have the right to decide the rule of law for all states, when it comes to issues not covered by the Constitution.

The same is true when it comes to marriage, and many other hot button issues. The Constitution does not grant such power to the Court or the Federal Government, and therefore these issues are to be decided by the states and by the people, not through judicial activism. The only other appropriate alternative is to amend the Constitution to address those issues not already covered.