Glenn Greenwald On “Judicial Activism”

Ken AshfordCourts/Law, Right Wing Punditry/IdiocyLeave a Comment

Glenn Greenwald writes the post that someone (myself included) should have written a long time ago.  He skewers rightwing bloggers and pundits who bluster uncontrollably about "judicial activism".  The thrust of Greenwald’s post is this:

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.


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.

I, too, have seen this phenomenon many times.  Occasionally, I will confront the accuser and ask, "Well, what were the legal issues involved in the case?  Why was the judge’s decision clearly outside the scope of legal interpretation?"  Eventually, my question becomes much more simple: "Did you even read the opinion to determine why the court decided the way it eventually did?"

Some people don’t seem to get it: when courts rule, they issue a legal opinion.  You can actually read for yourself why they decided a certain way.  In every case, you can see the legal reasoning behind a court’s opinion. 

One may think the reasoning is flawed, but that is something entirely different from "judicial activism" which, by definition, argues that a court simply decided the outcome without resort to legal interpretation (in instead, based on the personal political predilictions of the judge or judges).  There are many cases where I disagree with the outcome, but I never — never — doubt the sincerity of the judge who reached the conclusion; rather, I simply believe his interpretation of the law was flawed.

I’m glad Glenn wrote this.  Another one of his seminal articles.