Herzog on "legislating from the bench"

I just came across this excellent post by Dan Herzog at Left2Right about the common conservative rhetoric of being opposed to "legislating from the bench." When he announced the Harriet Miers nomination, President Bush declared that "Harriet Miers will strictly interpret our Constitution and laws. She will not legislate from the bench." Likewise, the White House's information page about Miers' replacement as a nominee, Samuel Alito, says, "Judge Alito does not legislate from the bench...". Herzog explains what this code language is really intended to mean:

The usual target in this discussion is Griswold v Connecticut (1965), where the Court announced a right of privacy in striking down a statute banning the use of contraceptives. But where "in the Constitution," as critics like to ask, or leer, does it say anything about the right of privacy? Justice Douglas's language for the majority is much mocked; he referred to

specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

Penumbras and emanations?! Let all the merry conservative skeptics chime in: ha ha ha. Legislation from the bench! And that right to privacy helped anchor the Court's decision in Roe, which appealed to Griswold and other precedents.

And indeed we do hear this rhetoric about Griswold a great deal. Their leading legal scholars scoff at this notion of "penumbras and emanations" and haughtily declare that this means nothing more than a judge "discovering rights that have never existed before" or "reading his personal opinions into the text of the Constitution" - the hallmark of their favorite pet phrase, "judicial activism". The problem is that they don't apply this rhetoric consistently, they only apply it in cases where they disagree with the outcome. And Herzog gives an excellent example of this:

Okay, so what about Boy Scouts of America v Dale? That case held that it was unconstitutional for the state of New Jersey to bring a public accommodations antidiscrimination statute to bear against the Boy Scouts: if the Scouts wanted to get rid of an assistant scoutmaster for being gay, that was within their rights. Somehow Chief Justice Rehnquist's language for the majority isn't mocked:

This case presents the question whether applying New Jersey's public accommodations law in this way violates the Boy Scouts' First Amendment right of expressive association. We hold that it does.

True, he didn't talk about emanations or penumbras. But he might as well have. Where oh where "in the Constitution" does it say anything about freedom of association? In case you haven't dutifully committed the text to memory, here's the first amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

So freedom of association isn't there! Rehnquist made it up! But I have yet to find a single right-wing commentator denounce Dale, and believe me, I've looked. It's hard to resist the inference that the alleged jurisprudential contrast between strict construction and legislation from the bench is nothing but a mask for illicit policy concerns. Whether an opinion is called strict construction or legislation from the bench seems to depend solely on whether the commentator likes the outcome. That game is too dreary and, frankly, too stupid to be worth playing...

On and off the bench, when it comes to constitutional law, interpretation is the only game in town. The contrast that matters is that between good and bad interpretations, not between people who "faithfully apply the letter of the Constitution" and those who "make stuff up."

Dead on.