Judicial Activism

Glenn Greenwald has a clear and somewhat scathing post on judicial activism, based on the recent suit by Dennis Kucinich against MSNBC for breach of contract for disinviting him to the Nevada debate. Greenwald's discussion is telling and, as far as I can see, perfectly apt.

I started hunting down and reading court decisions on a regular basis beginning with the various gay marriage cases in state courts, as well as findings of the federal courts in creationism/ID cases (which go back a lot farther than Kitzmiller), and I did once work in a law office (in itself no qualification in general, save that I'm not stupid nor incurious -- which I guess makes me unsuitable for the presidency -- and legal documents are not all that impenetrable, in spite of what lawyers would like you to think). I've found that, just to take perhaps the most egregious example, the opinion in Goodridge, et al. was cogent and tightly reasoned. It also caused perhaps the loudest screams from the right than any other finding in recent memory, with the possible exception of Lawrence because, as far as I was able to tell, it wasn't "godly" or something like that. The fact that it was a logical and reasonable extension of legal rights to a previously disfavored class seems to have had much more to do with the conservative reaction than its foundation in the Massachusetts constitution.

And you will note, I hope, as you remember back on some of the singular court cases of the last few years, that those most ready to scream "judicial activism" are those least likely to be willing to live under the rule of laws equally applied. (I don't think this is too strong a characterization. We've seen, in the actions of a conservative administration and the statements of conservative candidates, just how much contempt contemporary conservatives have for American traditions and the foundations of our society -- to the degree that I, who have normally voted a split ticket for lo! these many years, would not consider voting for a Republican until there is a major shake-up in that party.)

I do have to say that I'm not so forgiving as Greenwald in imputing the cries of "foul" on the right to mere wishful thinking. Aside from the overt contempt for the rule of law and for American judicial traditions, I see a deeply cynical political maneuver designed to discredit the courts. I do note that the pace of this reaction, reaching to the Oval Office itself, seems to have accelerated in the past six or seven years. From an administration that seems determined to establish that the executive is the only branch of government, this is no surprise.

At any rate, read Greenwald's post. He's spot on.