The past few decades have seen a rise in the frequency, intensity, and prominence of attacks against the courts by politicians, commentators, scholars, and interest groups. This project begins exploring the significance, cogency, and relevant political context of these criticisms by examining the particular claim that judges "legislate from the bench"— somehow acting more like lawmakers than
... [Show full abstract] jurists. My research is based on two primary components, the first consisting of an empirical analysis of how the legislating from the bench term is invoked, the second entailing a systematic normative assessment of these various critiques. Ultimately, I claim that traditional political and scholarly judgments about legislating from the bench need to be supplemented with a more thorough and rigorous account of this vilified practice. Given the nature of our separation of powers system and the evolution of the judiciary's role, some aspects of legislating from the bench are both inevitable and desirable. By appreciating the different forms that legislating from the bench can assume, this practice can be defended against the nearly unanimous negative views of scholars and politicians.