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Conservative jurisprudence

I came across a fascinating exchange today between Glenn Greenwald and a right winger named Ed Morrissey.

Glenn, a lawyer, commented on the Morrissey post to which I’ve linked. In that post, Morrissey, obviously not a lawyer, criticizes a lower court in Nevada for ordering NBC to allow Dennis Kucinich to participate in a recent debate. That decision was subsequently overruled, but not before Morrissey had written his post, claiming that the lower court’s decision was an exercise in judicial activism. In the course of that post he stated:

However, the 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.

The lawyers among my readers will note that every assertion in this paragraph is incorrect. State courts do have jurisdiction over state law questions, even if they affect national broadcasts. You can’t “file a tort”. Kucinich’s case was based on breach of contract, a traditional state law claim. I don’t know how much law that lower court judge knew, but Morrissey has certainly demonstrated that he knows far less.

Glenn used Morrissey’s post as an illustration of the right wing tendency to attack judicial decisions as examples of “judicial activism” without making any serious attempt to engage with the legal issues involved. These opponents of “judicial activism” instead have a totally results oriented view of the law: if I don’t like the decision is must be wrong, both legally and morally, besides being inconvenient from my own political perspective. Greenwald explicitly expressed no opinion on the merits of the case, since he didn’t have enough information about either the facts or the arguments being made, but he did observe, in so many words, that Kucinich’s contract argument was not facially absurd. I should add here that when I heard Kucinich had filed suit, I figured the suit would be based on a contract theory, because it makes sense. They offered Kucinich a spot and he accepted. Offer and acceptance are the two main ingredients of a contract. Other factors come into play, but those are the biggies.

Reading the exchange is informative because it reveals a bit of the chasm that separates the right wing from the reality based world. It seems clear that Morrissey truly can’t understand the simple argument that Greenwald is making: that you can’t criticize a judicial opinion as judicial activism if you don’t know anything about the law generally, or the relevant precedent specifically. What I found particularly illuminating was Morrissey’s crowing addendum after the original decision was reversed:

Looks like the Nevada Supreme Court agrees with me, and not Glenn Greenwald.

According to Morrissey, the Supreme Court’s decision proves him right. Why? The only real answer can be: because he agrees with it. Had it gone the other way it would simply have proven the Nevada Supreme Court to be an activist court. As with so many right wing arguments, whatever happens proves their case. Point two: The court did not disagree with Glenn Greenwald, because Greenwald never took a position on the merits of the case. He simply took a position in favor of intellectual rigor and honesty. Morrissey seems incapable of understanding Greenwald’s position. Rather than attempt to do so he simply alters reality to change the terms of the debate. Morrissey proves Greenwald’s argument by engaging in precisely the sort of intellectual dishonesty with which Greenwald originally took issue.

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