FDU PublicMind - March 15, 2006 Release

Criticizing the Courts

In recent years the judiciary has come under sustained criticism from a variety of politicians and interest groups for “legislating from the bench.” According to the most recent results of Fairleigh Dickinson University's PublicMind Poll, a third of New Jersey voters (36%) say they've never heard the phrase “legislating from the bench,” and, on the other hand, a third (36%) say they've heard or read some or a great deal about this popular GOP criticism of the court.

Among those who have heard of the phrase “legislating from the bench,” three-quarters (75%) think it is a somewhat or very serious problem in the federal courts and two-thirds (66%) say it's a very serious problem in the state courts.

However, Republicans are more likely than Democrats to say they have heard the expression “legislating from the bench” and more likely than Democrats to say they've heard or read a lot about it. Republicans are also more likely to say it is very serious whether in the federal or state courts. Likewise, conservatives are more likely than moderates or liberals to say that for both federal and New Jersey courts legislating from the bench is a very serious problem.

In the study, the notion that New Jersey courts rule on a partisan basis stands out as the most serious problem. A majority of voters (59%) say New Jersey courts ruling on the basis of what their political party wants is a very serious problem, including 55% of Democrats as well as 64% of Republicans who say this type of partisan decision-making is a very serious problem. This contrasts with just:

30% who say New Jersey courts overruling elected representatives is a very serious problem;
38% who say New Jersey courts making rulings that affect people far beyond those who brought the case is a very serious problem;
33% who say New Jersey courts “legislating from the bench” is a very serious problem.

“The courts are in the crosshairs of politicians and activists,” said Dr. Bruce Peabody, a professor of political science who specializes in judicial politics. “Attacks on the courts by activists and politicians may have the effect of making rank and file voters worried about the partisanship of the courts. This is particularly troublesome because the traditional defense of the courts is that they are neutral and non-partisan.”

Peabody undertook a study of the criticism “legislating from the bench,” which has been used increasingly by Republicans to attack the courts. President George W. Bush, for example, used the term in his most recent State of the Union Address. Meanwhile, Sandra Day O'Connor, recently retired from the U.S. Supreme Court, delivered an unusual speech on March 9^th in which she criticized Republican attacks on the courts. “There is a growing volume of conservative attacks on the courts during a period when you would expect there to be less,” said Peabody. “Attacking the courts is a strategy to appease certain constituencies, but the worry is that it will eventually lead to more general attacks on the legitimacy of the Court.”

“The irony of this sustained criticism of the federal courts from Republicans,” added Peabody, “is that the Supreme Court is very conservative now. This is an important moment in history for the Court,” said Peabody. “Criticism of the courts may increase in years to come because both sides, conservative and liberal, have very high expectations.”

The New Jersey Supreme Court is considered more liberal than the U.S. Supreme Court and has handed down a number of decisions with far-reaching implications for residents of New Jersey. Nonetheless, New Jersey voters in the study are more likely to identify legislating from the bench as a problem of federal courts as opposed to one of New Jersey courts. While 40% say federal courts legislating from the bench is a very serious problem, just 33% say it is a very serious problem for New Jersey courts. Democrats are especially likely to see legislating from the bench as a serious federal problem as opposed to a problem at the state level. Republicans, by contrast, are almost as likely to be as critical of the state courts as they are of the federal courts.

The PublicMind poll of 601 randomly selected registered voters statewide was conducted by telephone from February 27 through March 6 and has a margin of error of +/- 4 percentage points.

Poll Analysis

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