The controversy behind "legislating from the bench" was brought up in class Wednesday, and though it may not be the direct focus of the Lombardo book, I feel it's an interesting topic of which I would like to get others' opinion on considering several of the books we have read are about the history and evolution of the Supreme Court. It is interesting how, as Dr. Baker noted, the Court has taken a much more active role in recent history in terms of overturning precedents, and though this could be called "legislating," I believe you would be hard-pressed to find anyone on the side of the overturning who would say so.
If it is true that the Supreme Court picks only a few cases a year to hear, than wouldn't the very fact that they will render judgment on the constitutionality of a law, no matter what the outcome, send a de facto message to the states as to how they should engage said law? In other words, a non-answer is still an answer. The argument could be made that in the Buck v. Bell case the Supreme Court was merely showing judicial restraint and deferring to the states, as many would insist they should, but as a result they were putting their stamp of approval on a provocative medical practice. As Lombardo states in the introduction, in the wake of the decision, "opposition to sterilization seemed to melt away." Within a decade, more than a dozen states would use these methods. The underlying message here seems to be that the very act of the Supreme Court hearing a case is a form of "legislating from the bench" in its own right. I wonder if they are aware of this dynamic or if they even believe its veracity. Do you disagree?
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ReplyDeleteThis (legal) area is not my strong suit, however I would agree with you that the Supreme Court can just by hearing or not hearing a case can have influence. But does your statement about the immediate decades following the ruling hold up when B v B was still being referenced as a good finding in the early 2000's? or does it strengthen it?
ReplyDeleteI believe it strengthens it. The fact that Buck has been cited in 150 cases, not to mention the fact that most of these laws are stilly on the books is jaw-dropping spooky. The legacy of Buck v. Bell is not one of a tragic judicial anomaly, but has tentacles throughout our current day legal system, whether in regard to how we treat the disabled, the incarcerated, and reproductive rights. Perhaps it takes the Supreme Court adjudicating the law again to actually put the controversy back onto the social radar. Until then, as was stated in another post, the world we olive in seems creepily dystopian.
ReplyDeleteI believe it strengthens it. The fact that Buck has been cited in 150 cases, not to mention the fact that most of these laws are stilly on the books is jaw-dropping spooky. The legacy of Buck v. Bell is not one of a tragic judicial anomaly, but has tentacles throughout our current day legal system, whether in regard to how we treat the disabled, the incarcerated, and reproductive rights. Perhaps it takes the Supreme Court adjudicating the law again to actually put the controversy back onto the social radar. Until then, as was stated in another post, the world we olive in seems creepily dystopian.
ReplyDelete