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What is the origin of the expression "legislate from the bench" used to describe "judicial activism" in the United States? Do judges have different seating arrangements from congressmen?

In more detail, do legislators (congressmen) sit on different appliances as compared to judges? Why does "bench" imply the judicial branch more than the legislative branch? Do judges sit on benches while senators sit on armchairs?

In other words, what is the origin of describing the judges as sitting specifically on a "bench"? I assume what they sit on is padded just as much as your typical senator's seat.

Note1: @TimLymington pointed out in a comment that what is relevant is the length of the bench, with several judges sitting on it. Meanwhile, members of other branches of goverment usually sit on individual seats. This seems to be the explanation of the expression dating back to the 13th century. TimLymington can format his comment as an answer so I could "accept" it.

Note 2: the comment at wiki that the bench is where the judges sit appears to be incorrect. Rather the "bench" seems to refer to the table where they work.

Note 3. When a judge tells a barrister to "approach the bench", as in this post: https://xkcd.com/1153/ he typically does not mean to imply that the barrister should aim for the judge's seat, but rather the table/desk/bench.

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As requested, a simple explanation. Judges sit not so much on a literal bench as at one; behind a long, heavy table, often raised from the rest of the court (compare a workbench; a carpenter or welder would be surprised to be given padded seating). The reason is partly historical, partly so that a panel of several judges can sit close enough to consult if necessary, and partly practical; litigants (including lawyers) are frequently disgruntled, but this way they cannot push the table over or physically attack the judge, which would involve a lengthy prison sentence.

The Bench is thus the distinguishing mark of judges, as The Bar is for advocates, arising from the former practice of lawyers standing within a bar in the courtroom, while laymen stood outside. A law student who passed his exams was called to the bar, and became a barrister.

  • You mean the bench is referring to the table where they place the documents on rather than on their seating arrangement? – Mikhail Katz Jan 24 '14 at 11:18
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The bench in this context means:-

the place where a judge sits in a court of law

So legislating from the bench means legislating from the judge's seat, which is to say, making rulings that (in the opinion of the speaker) are tantamount to modifying laws passed by the legislature, or creating new ones.

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    +1 - for distilling a potentially long and complex answer into a concise one. – anongoodnurse Jan 23 '14 at 11:58
  • @Brian, my point was precisely to ask whether legislators (congressmen) sit on different appliances as compared to judges. Why does "bench" imply the judicial branch more than the legislative branch? Do judges sit on benches while senators sit on armchairs? – Mikhail Katz Jan 23 '14 at 12:32
  • @katz: Actually, judges ex officio usually do sit at a raised bench. But it is simple metonymy en.wikipedia.org/wiki/Metonymy) to describe judges as a whole as 'the Bench' just as barristers are described as 'the Bar' or the 100 United States Congressmen can be described collectively as 'the House'. (Individually they are usually given more vivid and less flattering descriptions). – TimLymington Jan 23 '14 at 12:55
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    @Katz: Look up 'Bench' , Padding is not relevant; length is. – TimLymington Jan 23 '14 at 13:08
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    @katz, in the House of Commons and the House of Lords, members do indeed sit on benches; hence backbench MP and cross-bench member. For some reason their activities are never described as legislating from the bench, even though that is what they are doing. I couldn't say about other legislatures. – Brian Hooper Jan 23 '14 at 13:21
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The term bench to refer to the judicial office dates back to at least the 13th century.

The derivation appears to arise from the actual seating once used by judges:

The historical roots of that meaning come from the fact that judges formerly sat on long seats or benches (freestanding or against a wall) when presiding over a court

  • Thanks. For the convenience of other editors, I reproduce what the online etymological dictionary has to say about it: "bench (n.) Old English benc "long seat," from Proto-Germanic *bankiz "bank of earth," perhaps here "man-made earthwork," later "bench, table" (cf. Old Frisian bank "bench," Old Norse bekkr, Danish bænk, Middle Dutch banc, Old High German banch), from PIE root *bheg- "to break." Used for "office of a judge" since late 13c." – Mikhail Katz Jan 23 '14 at 13:27
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In the American system of government, the government is divided into three parts: the executive, the judiciary, and the legislative.

At the simplest level (risking oversimplification), the legislative branch composed of the Senate and the House of Representatives authors new laws. In other words, it legislates. The executive, centered around the president, is then tasked with executing these laws. I.e., it does what the law says. The judiciary, colloquially called the "bench" for the reasons explained in the other answer, is tasked with ensuring the rights of the people against their infringement. The idea that each has a separate domain is the separation of powers.

Legislating from the bench refers to when the court, in the opinion of the person writing the sentence, violates the separation of powers and oversteps its role in protecting citizens against encroachment by establishing a new law. The reality of how the different branches of government have power is more complex, but the phrase intends that at least in the judgment of the writer or speaker that a judge has gone beyond what he should do and generated new law (which is the duty of the legislative branch and not the judicial branch).


Why a bench? The OED defines bench as follows:

The seat where the judges sit in court; the judge's seat, or seat of justice; hence, the office or dignity of a judge, as in ‘to be raised to the bench’.

Their citations date back to 1275 and then to Henry IV Part 2 v.ii.85 Related uses from 1280 in French per the OED refer to it at as the seat of justice and in both English and French to act in an official capacity. So one partial answer might be to ask the French rather than the English?

  • very true, but what's the connection between a judge and a bench more than an armchair, for example? – Mikhail Katz Jan 23 '14 at 13:22
  • I've amended with information re: the bench from the OED. Glib answer: ask the French. Conjecture: a judge sits in the place of justice taking on its power. A legislature gains its power from the people and thus its seat is not a "bench" invested with power from a higher place. – virmaior Jan 23 '14 at 13:30
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According to The Free Dictionary, the word bench derives from the Latin bancus

BENCH. Latin Bancus, used for tribunal. In England there are two courts to which this word is applied. Bancus Regius, King's Bench Bancus Communis, Com-mon Bench or Pleas.

If a bench is where the judges (tribunal) sit, and the creation of law is legislation, any law created by (or deemed to be created by) a judge or panel of judges, is referred to as "legislation from the bench".

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The Bench is a colloquial term referring to where judges sit and listen to the cases before the court. In practice, the Bench is thus where the decisions of the judges (Judgements) are made and thus given.

To understand the meaning of the expression "Legislate from the bench", one has to understand the meaning of legislate. Legislature is the process by which laws are passed. The role of legislating thus lies with parliament, as it is through parliamentary debate and discussion where new laws are passed.

However, after a law is passed, it is up to the courts to interpret the law and pass judgements in line with the law. Once a case has been decided, the decision of the judges in that case creates a precedent that can be/ must be followed (depending on the level of the Court in which the decision was made- the actual term is Stare Decisis). In situations where the case is decided at the highest court, that decision is said to be binding on future cases.

In theory, the function of the legislature and the judiciary should be kept separate. However, it is not so clear cut in practice where the courts have to balance tensions of justice with public policy. In certain cases, where judgements have public policy considerations, the court might impose a decision that should have been the decision of the legislature instead. These decisions involve the creation of precedence that is binding on subsequent cases, essentially creating new law.

Hence, the phrase "Legislating (creating new law) from the bench (by judges)".

Note: this is more common in countries with the Common Law tradition (e.g. England)

  • Ken, the consensus here seems to be that the "bench" in question is not what the judges sit on but rather what they place their files on. Your reference to the judges "sitting" seems to suggest that you think otherwise, but perhaps I misunderstood your comment. – Mikhail Katz Dec 28 '15 at 13:27

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