In 2016, vice presidential candidate Mike Pence told voters that “Donald Trump will appoint men and women who will strictly construe the Constitution and not legislate from the bench.” The phrase “legislate from the bench” has long been trotted out by Republicans. George W. Bush used it, for example, when first nominating John Roberts to the Supreme Court. It’s shorthand to attack what critics view as “judicial activism,” an accusation lobbed at judges who they believe exceed their power and meddle in matters that are better and ordinarily addressed by elected representatives.
And yet, one would be hard-pressed to find two phrases that more aptly describe the actions of the Supreme Court, including its three Trump appointees, than “judicial activism” and “legislating from the bench.”
Even if one agrees with this decision, how is such a ruling consistent with opposition to “legislating from the bench”?
The court’s decision to throw out President Joe Biden’s student loan forgiveness plan is merely the latest example. The issue at hand is the Biden administration’s interpretation of the 2003 Higher Education Relief Opportunities for Students Act. That law states the secretary of education “may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs … as the Secretary deems necessary in connection with a war or other military operation or national emergency.” Because of the Covid-19 pandemic, the White House put forward a plan to forgive $10,000 in student debt for Americans who make less than $125,000 a year and up to $20,000 for those with outstanding Pell grants.
In even taking the case, Justice Elena Kagan noted in her dissent that the court overstepped its authority. “The plaintiffs in this case,” Kagan wrote, “are six States that have no personal stake in the … loan forgiveness plan. … The Court acts as though it is an arbiter of political and policy disputes, rather than of cases and controversies.”
In this case, Congress passed a law that authorized the secretary of education to forgive student loans. The secretary interpreted the law to allow him to forgive a set amount of student loans. But rather than deferring to the executive branch or allowing Congress and the White House to reach a compromise solution, the court instead imposed its own judgment — and decreed that 45 million Americans should not receive a benefit because, as Kagan put it, the conservative members of the court have determined that the size of assistance provided is too “significant.”
Even if one agrees with this decision, how is such a ruling consistent with opposition to “legislating from the bench”?
Imposing the viewpoint of judges over that of the people’s elected representatives has become a consistent and disquieting trend in the Roberts Court. Last year, in West Virginia v. EPA, the court blocked a major climate change regulation to clean up power plants, even though the Clear Air Act authorized such action. In the process, the court enacted a new and wholly invented theory called the “major questions doctrine,” which allows the court to restrict the actions of a regulatory agency in cases where a regulation exercises “powers of vast economic and political significance.”
How does the court decide what is of “vast economic and political significance” and thus justifies its intervention in decisions that are traditionally made by elected officials? Your guess is as good as mine. (Before joining the Supreme Court, Brett Kavanaugh admitted that “determining whether a rule constitutes a major rule sometimes has a bit of a ‘know it when you see it’ quality.”) But with this court, it often seems to depend on which party controls the White House. Indeed, in 2018, the conservative majority upheld the Trump administration’s so-called Muslim ban in what former acting Solicitor General Neil Katyal calls “very-near-blind-deference” to the executive branch. So, deference when a Republican is in the Oval Office, less so when a Democrat occupies it.
It seems for conservatives, judicial activism is only a problem when liberals do it. Legislating from the bench has happened over and over again in rulings decided by the Supreme Court’s conservative justices. In early 2022, a conservative majority substituted its judgment for that of the Occupational Safety Hazard Administration when it scrapped a Covid vaccine mandate on the grounds that the agency had overstepped its authority in seeking to protect workers from Covid. In New York State Rifle & Pistol Association Inc. v. Bruen, the court threw out a New York law regulating concealed carry permits by determining that any gun regulation must be consistent with gun laws that existed when the Constitution was drafted in the late 18th century. In effect, the court was taking the right to draft gun control legislation out of the hands of elected legislators. Instead, it placed it in the hands of unelected judges, who, in cases around the country, are now deciding the legality of gun laws based not on elected officials and the will of the people, but on laws passed by men who have been dead for two centuries. Going back even further, in Shelby County v. Holder, the court reinterpreted the Voting Rights Act — a law passed by Congress and one that had been consistently reauthorized — by creating an “equal dignity of the states” doctrine to justify a decision that undercut a landmark piece of voting rights legislation. Even if one wants to defend these decisions on jurisprudence grounds, what is one to do with the rank hypocrisy? In nearly all these cases, the court has issued decisions that are completely consistent with the type of judicial activism that a generation of Republican elected officials and legal luminaries once strenuously decried. It seems that for conservatives, judicial activism is only a problem when liberals do it. Otherwise, it’s not merely acceptable but outright laudable. As Jonathan Zasloff, a law professor at UCLA School of Law, told me, “either you believe in judicial restraint or you don’t.” The court’s decision making has the feel of “the Iran model — the legislature passed something, and then the Supreme Council of Guardians determines if they like it.” In a speech last year, Roberts complained that “simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.” But how else should legal observers respond to a court that seems to make decisions based on political or ideological grounds and then afterward backfills in the legal justification? When there’s no rhyme or reason to the court’s decision making, why would ordinary Americans continue to view the nation’s most important judicial body as anything other than politicians dressed up in black robes? If Roberts wants to know why the court’s legitimacy is under attack, he — and his five conservative colleagues — just need to look in the mirror.
Michael A. Cohen is a political writer and a fellow with the Eurasia Group Foundation. 
