Originally Posted by mulp

But as Obama pointed out, the conservatives had "ideas" (not necessarily good ones) like inventing catchy phrases like "legislate from the bench."

[[[I'm curious about who coined it; the first reference I've found is a quote by Vice President Bush in 1985 in an obit of the justice who died that year.]]]

Of course, common law was precisely "legislating from the bench." I don't believe the rule SCOTUS came up with in Roe were criticized at the time as "legislating from the bench" but only for its precident that overturned many state laws. Only after legislators tried to write laws that circumscribed Roe did the trimester logic get termed "legislating from the bench."

If the Roe decision gave no parameters and simply ruled "wrong rock" in a dozen different cases, they could have crafted something almost like the trimester test without stating it, and avoided most of that criticism. And with lots of cases without a unified logic, stari decisis would be much more difficult to overturn - no case or law challeging the court could challege all the prior cases, and it would require a SCOTUS deciding to "clean up a mess" like they did with Roe.

In any case, most uses of "legislating from the bench" come from conservatives, as a means of attacking judges, rather than a criticism of rulings.