The Most Incompetent Branch
![handle is hein.journals/gmlr23 and id is 519 raw text is:
2016]
THE MOST INCOMPETENT BRANCH
Ian Millhiser*
INTRODUCTION
Judges are not legislators.
This is such a trite observation that it is practically a clich6-an insult
hurled against judges that supposedly sin against their office by legislating
from the bench.' Nevertheless, our instinct to recoil from judges who con-
fuse their role with that of elected officials is a healthy one in a democracy.
Legislators rightly enjoy broad discretion to make policy because they were
chosen as the people's representatives and are accountable to their voters in
the next election. Judges, meanwhile, enjoy no such mandate. They are,
with their distance from democracy and their lifetime appointments, the
closest thing the United States has to a governing nobility.
While an elected official's legitimacy flows from the will of the peo-
ple, a judge's legitimacy flows from a written text. It is emphatically the
province and duty of the judicial department to say what the law is,2 not to
bring new laws into being. A judge who divorces their opinions from a con-
trolling text strays far afield from their constitutional role.
Yet, while few doubt that Article I describes an entirely different
branch of government than Article III, the reality is that distinguishing the
legislative role from the judicial is actually far more difficult than pithy
broadsides against judges who legislate from the bench suggest.
Our Constitution is simply riddled with phrases that offer judges little,
if any, guidance on how it should be applied to individual cases. What are
the privileges or immunities of citizens of the United States?3 What
makes a search or seizure unreasonable?4 Which punishments are cruel
and unusual?5 If the government wants to deny someone liberty, how
* Senior Fellow, Center for American Progress; Editor, ThinkProgress Justice. J.D. 2006, Duke
University School of Law; B.A. 2000, Kenyon College.
I See, e.g., George W. Bush, Remarks Announcing Nominations for the Federal Judiciary, I PUB.
PAPERS 504 (May 9, 2001) (Every judge I appoint will be a person who clearly understands the role of
a judge is to interpret the law, not to legislate from the bench.); Michael Tomasky, Michael Tomasky
on the GOP's Hypocrisy About Activist Judges, DAILY BEAST (Mar. 21, 2012), http://www.thedaily
beast.com/articles/2012/03/21/michael-tomasky-on-the-gop-s-hypocrisy-about-activist-judges.html
(arguing that conservatives are the real legislators from the bench).
2 Marbury v. Madison, 5 U.S. (I Cranch) 137, 177 (1803).
3 U.S. CONST. amend. XIV, § 1.
4 Id. amend. IV.
5 Id. amend. VIII.](ViewImageLocal?handle=hein.journals/gmlr23&div=25&collection=&method=preview&ext=.png&size=3)
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The Most Incompetent Branch
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