A judge deciding that NBC should allow Dennis Kucinich to participate in a debate in Nevada - as per a previous agreement apparently amounting to a binding contract - has been predictably met with a braying chorus of accusations of “judicial activisim” from the usual suspects. I’ve realized for quite a while that “judicial activism” is nothing more than a code phrase for “that’s ideologically unacceptable so I’ll throw a hissy fit,” although I’ve avoided the issue ever since the Shiavo case. I’ve never quite recovered from the utterly blank and uncomprehending stare I received after asking a normally rational, intelligent person - after they’d been snarling about the evil judicial activist judge who’d made a decision not consonant with that week’s RNC official talking points - just which law the Republican judge had overridden in his decision.
Glenn Greenwald nicely sums up the reality behind the “judicial activism” chorus:
“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.