The Corner

Legislating From the Bench (Sort Of)

The Supreme Court has just issued a narrow and highly contested decision on employment discrimination. Justice Ruth Bader Ginsburg was in the minority, and read a stinging dissent from the bench (a rare practice). According to the San Francisco Chronicle, “Ginsburg urged Congress to intervene and change the law.” According to WaPo, “She called for Congress to correct what she sees as the court’s mistake.”

I haven’t seen the text of Justice Ginsberg’s dissent, but if these reports are accurate, it surprises me a bit. I would have thought that justices would be reluctant to openly call for specific legislative actions in their opinions or statements from the bench. It’s one thing to note that Congress has the option of addressing an issue in whatever way it pleases. But should a justice actually call for particular legislative action? I’m perfectly prepared to believe that there is in fact no such tradition of restraint along such lines. Maybe it’s perfectly ordinary for a justice to advocate for specific legislation in an opinion. But if I had to guess, I would have said that it was a rare and discouraged practice (except perhaps in cases where a chief justice calls for some sort of specific legislative action vis a vis the courts themselves). Does anyone know what common practice on this is?

Stanley Kurtz — Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center.

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