I have previously written that Roberts’ approach flows from the strain of conservative jurisprudence that has been harping about “legislating from the bench” for decades. This mantra comes from conservatives shell-shocked by the judicial activism of the 1970s, including Roe v. Wade.
When you hear Republican politicians warn about “legislating from the bench,” they are using rhetoric from two decades ago when courts advanced a leftist agenda in the absence of legislative activity. The term today is as archaic as parachute pants and AMC Gremlins. These days, legislatures are passing leftist legislation that exercises unconstitutional power. In that circumstance, it is up to the courts to defend the Constitution. Today, the Court flinched from that obligation, in part because of decades of conservatives repeating the empty and now obsolete admonition against “legislating from the bench.”
Justices like Scalia, Thomas and Alito are more interested in protecting liberty than protecting the Court. They are more interested in upholding the Constitution than they are insulating the Court from leftist criticism.
When I hear Republican politicians crow about “legislating from the bench,” I cringe. That’s a battle from two decades ago. These days, the Constitution needs to be defended, even if it takes the flexing of judicial muscle.
Let’s hope Mitt Romney promises to appoint judges who defend Constitutional liberty, not judges fighting fights from decades ago.