"judicial activism"

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Here is a great article debunking the term the rightwing has coined as "judicial activism".

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Tuesday January 15, 2008 06:27 EST
The Kucinich court decision and "judicial activism"

(updated below)

MSNBC is televising a debate tonight between the Democratic presidential candidates in Nevada. It originally invited Dennis Kucinich to participate because Kucinich met the objective criteria the network created for inclusion. After Kucinich received less than 1% of the vote in both Iowa and New Hampshire, MSNBC rescinded its invitation. Kucinich brought suit yesterday in a Nevada state court seeking an injunction compelling his inclusion in the debate, and the state court judge sided with Kucinich.

The reactions to this decision are far more meaningful and interesting than the specific legal issues raised by this dispute. In every case where a court issues a decision on a controversial matter that produces an outcome which right-wing polemicists dislike, they immediately decide -- literally overnight -- that they are experts in the legal issues which the court had to resolve. Then -- without bothering even to learn what those issues are, let alone bothering to read anything about them -- they start condemning the court's decision as some sort of lawless expression of "judicial activism." In reality, the only ones engaged in "judicial activism" -- which means, I suppose, determining the propriety of a court ruling based on outcome preferences rather than legal analysis -- are the ill-informed critics of the court's ruling, who are judging the ruling based exclusively on their objections to the outcome.

The complaint (.pdf) filed by Kucinich is simple and straightforward. He alleges that he had a binding contract with MSNBC once they offered and he accepted the terms of his participation in the debate, and that MSNBC's refusal to allow him to participate constitutes a breach of that contract. He also alleges that his exclusion violates the mandates of Section 315 of the Communications Act, which requires broadcasters -- who operate the public airways, i.e., airways which are public, not private, property -- "to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of public importance."

Nobody can opine meaningfully on the propriety of the court decision here without first knowing about, and then analyzing and resolving, those legal claims. That's how the law, when properly applied, works. You don't get to pick which outcome you think is most desirable or "fairest" in some vague philosophical sense and then, based on those preferences, decide if the court correctly adjudicated the questions before it. A court adhering to the rule of law, by definition, applies the law and legal principles. Self-evidently, to know if the court acted properly, a basic knowledge of those laws and legal principles -- at minimum -- is first necessary.

Read the rest here:
http://www.salon.com/opinion/greenwald/2008/01/15/kucinich/index.html

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