The Kucinich court decision and "judicial activism"

Reaction to the ruling underscores how corrupt the right-wing's understanding of the judiciary has become.


Glenn Greenwald
January 15, 2008 4:27PM (UTC)

(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 After Kucinich received less than 1% of the vote in both Iowa and New Hampshire, MSNBC rescinded its invitation.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.

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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.

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But, needless to say, conservative commentators who believe themselves to be Paragons of Judicial Restraint are already -- as they always do -- condemning this decision without having any idea what they're talking about, based exclusively on their distaste for the outcome. As but one representative example, here is conservative Ed Morrissey trying to explain why this decision is such a profound violation of Judicial Restraint, of all that is Good and Right -- in a post already being widely cited by furious right-wing bloggers as the Gold Star analysis:

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Judge To NBC: You Can't Control Your Own Content . . . .

[T]he judgement is absurd on its face. In the first place, the state courts wouldn't have jurisdiction for a national broadcast. Constitutionally, this case belonged in federal court, which has jurisdiction on any interstate commerce complaints. Kucinich filed his tort in state court hoping to find a sympathetic, activist judge who didn't know much about the law, and apparently succeeded.

More offensively, the courts don't have any business telling NBC or any other network that they have to include certain individuals in a debate. It may be a poor decision to exclude certain candidates, but the broadcast is the property of the network and it's their decision to make. The court apparently has no respect for private property in that sense.

Morrissey, in his indignant condemnation, makes no mention whatsoever of the only actual issues that are relevant -- Kucinich's breach of contract claim and Section 315 claims. One wonders if Morrissey even has any idea what the arguments are that the court had to resolve. That seems doubtful, and if he did, he doesn't bother to mention them. How can someone condemn a court decision without bothering to inform oneself about the legal issues the court has to resolve? All Morrissey knows is that he wants a certain outcome -- he thinks MSNBC should have the right to decide who gets excluded from its debate -- and his "analysis" is based exclusively on whether or not the Judge gave him the outcome he wanted.

Our public discourse has taught conservatives that any time a court issues a ruling that produces an outcome that they dislike, that's "judicial activism." But that's a cruelly ironic lesson because, to the extent "judicial activism" has any meaning at all, it means doing exactly what right-wing ideologues have learned to do when talking about court rulings: judge the rulings based solely on their affection for the outcome.

Just to underscore the extreme absurdity that this mindset produces, Morrissey has the gall to describe the judge here as an "activist judge who didn't know much about the law" even as he makes a claim that one can only describe as completely nonsensical: "Constitutionally, this case belonged in federal court, which has jurisdiction on any interstate commerce complaints."

That's not just wrong. It's pure nonsense. "Interstate commerce" is a term used to define the scope of Congressional power to regulate under Article I; it has absolutely nothing to do with a court's "jurisdiction." State courts can and, every day, do resolve disputes and issue rulings on "interstate commerce complaints" (whatever that might mean). Morrissey's claim that "Kucinich filed his tort in state court" is equally cringe-inducing, since Kucinich filed a contract and a statutory claim, not a "tort."

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Moreover, nobody -- including NBC (.pdf) -- disputes that courts, in general, have the authority to apply Section 315 as well as garden-variety contract claims to a network's programming decisions. The Congress and the Executive Branch regulate how our public airways are used through statutes and regulations, and courts are not just a proper venue, but are the only proper venue, for resolving disputes arising out of those laws and regulations.

It's literally impossible to know less about the relevant issues here than Morrissey. He just simply doesn't know what he's talking about in the slightest, yet that doesn't stop him from emphatically condemning the Judge as a stupid, corrupt activist, while accusing Kucinich of "fil[ing] the claim in the wrong court and push[ing] for government control over the speech, property, and assembly rights of NBC."

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The important point here is neither Morrissey nor the Kucinich decision. The court didn't yet issue a written ruling and I have no idea whether the court's decision is reasonable, defensible, or right. The contract claims require application of Nevada contract law to the specific communications between Kucinich and MSNBC, and the Section 315 claim requires all sorts of analyses as to whether its mandates apply to a cable channel such as MSNBC, whether Kucinich can be excused by the time imperatives from the statutory requirement of first seeking relief from the FCC before suing, etc.

I'm focusing here on the reaction to the decision, not the decision itself, because it's so illustrative of what happens every time there is a court ruling that conservatives dislike. They begin screaming "activism" without knowing anything other than their wish for a different outcome.

I wrote about this distortive syndrome before -- on the day last year when the New Jersey State Supreme Court interpreted its own Constitution and decades of New Jersey state jurisprudence and issued a 66-page ruling which held that the state constitutional rights of New Jersey citizens were violated by New Jersey's refusal to extend marriage benefits to same-sex couples. Literally within hours, hordes of right-wing commentators such as The Wall St. Journal's James Taranto and plenty of others, who had almost certainly never even read the New Jersey State Constitution before, let alone a single case interpreting it and applying its mandates, pronounced that the decision was legally flawed, that it was a grave departure from legal reasoning, that it was a clear case of -- all together now -- "judicial activism."

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The same exact thing happened when an Iowa state court last year invalidated that state's marriage laws. Suddenly, armies of right-wing commentators -- including the GOP presidential candidates -- were all instantaneous experts in Iowa state law and were thus perfectly able to condemn the decision as "judicial activism." As I wrote last year about the Overnight Emergence of New Jersey Constitution Experts:

This doesn't mean that only lawyers or constitutional law experts can form opinions about the court's actions. Anyone can read the judicial opinion, then go read the precedents on this provision, and inform themselves about what the New Jersey State Constitution does or does not guarantee. But -- as is true for any other topic -- a basic understanding of the relevant issues, so plainly lacking in all of these overnight experts, is required to be capable of anything more than baseless demagoguery. . . .

To know whether the court here acted properly, one must know whether the New Jersey State Constitution grants the rights which the court here concluded (unanimously) that it grants. Any condemnation of the opinion that is not based on that factor -- such as all of the condemnations linked above -- are themselves the very embodiment of an unhinged judicial activism that has nothing to do with the rule of law (other than to subvert it).

All day we're going to be subjected to commentary about "activist judges." That term has long ceased to mean anything other than "judges who issue rulings that compel outcomes which conservatives dislike." Perhaps the most egregious instance was when leading conservative activists were pathetically applying that term to the Republican Southern Baptist state court judge presiding over the Terry Schiavo case by faithfully applying clear mandates of Florida state law -- all because they wanted a different outcome, regardless of what the law required.

The systematic erosion of the rule of law in America has many aspects, and one significant one is that conservatives have been trained that they have the right to have judges issue rulings that produce outcomes they like, and when that doesn't happen, it means the judicial process is flawed and corrupt. Put another way, those marching under the banner purportedly opposed to "judicial activism" have been taught that they are entitled to have courts ignore the law in order to ensure the outcomes they want.

What else could possibly explain how someone can be convinced that they are in a position to condemn a judicial ruling without bothering to learn anything about the laws and legal issues in play? Hence: Bush should be able to eavesdrop on Americans without warrants and any judge who rules that -- under the law -- he can't, is guilty of "judicial activism." They've been trained to believe they're entitled to have judges give them the outcomes they want, and when that doesn't happen, that alone is grounds for proclaiming that the courts and judges are not just corrupt, but illegitimate.

UPDATE: Here is the Far Leftist, Shrill Liberal Blogger and (therefore) Judicial-Activist-Loving Atrios, opining on the Kucinich matter:

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[F]rom what I understand Kucinich met the established criteria, was invited to debate, and was then disinvited. No particular sense of how the judiciary should weigh in here, but it seems that the debate organizers should let Dennis in.

He expresses his desire for a particular outcome (Kucinich should be included), but -- despite that outcome preference -- he then recognizes he's in no position to assess the propriety of the court ruling because he's not yet familiar with the legal issues governing the decision. That's the basic distinction which right-wing adherents have been taught to ignore.


Glenn Greenwald

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