FDU PublicMind - March 8, 2006 Release

Democratic Comment by Rick Thigpen

We can all agree that the pursuit of a political agenda from the bench is bad news and it poses a serious threat to the credibility of the courts. The public is clear, there should be no place for partisanship on the bench. Does that mean that Bush v. Gore, should be overturned? For our system to function effectively, the courts must have legitimacy as the non-political guardians of the rule of law. Having said that, who else will rise to the challenge of protecting the constitutional rights of American citizens when they are being ignored by the policies of a local, state or federal government? How else do you insure that the laws are equally and fairly applied, even when doing so is politically unpopular?

For example, the landmark State Supreme Court case of Abbott v. Burke , which sought to correct disparities in education spending, has been widely criticized by conservative thinkers as “legislating from the bench.” That's code for objecting to a decision without clearly stating the reasons for the objection. The legislative response to this decision was the Quality in Education Act. It was a political catastrophe for Governor Florio and the legislators who voted for it. That does not make it wrong in the eyes of the law. One of the greatest things about our country is that under our Constitution, the Government must extend to all citizens the equal protection of the laws. Unfortunately, these requirements are not always politically popular. This requirement of equality before the law sometimes provides citizens with a judicial remedy for Government actions that would be unavailable in the political branches of government.

Is it legislating from the bench, if the courts require a State Government to abide by the equal protection requirement of the Fourteenth Amendment when it delivers government services? Is it legislating from the bench when a court holds that the Fourteenth Amendment prohibits exclusionary or discriminatory practices by public entities? When I hear the term legislating from the bench spoken by conservative political voices, I hear the use of code words, designed to mask the pursuit of an aggressive political agenda. It appears to me that in many cases, judicial legislating, like beauty, is in the eyes of the beholder.

Comment by Fairleigh Dickinson University's PublicMind Academic Associate, Rick Thigpen (J.D., Columbia University Law School). Rick is a former Executive Director of the New Jersey Democratic Party and now a partner in The Strategy Group and is a campaign coordinator for the Essex County Democratic Party. Rick Thigpen, Esq. can be reached at (609) 394-0888.