Dahlia Lithwick Makes an Absurd Argument about the Death Penalty

Dahlia Lithwick argues that popular support for the death penalty has declined in recent years from very widespread support to merely substantial majority support (67%), but because the Supreme Court has not declared it unconstitutional in view of this decline, the Court is at odds with the views of the people. Well, she doesn't say it quite like that. Instead, she hedges a bit, and uses phrases like "there now seems to be a subtle hardening in favor of the death penalty" on the court. But to me the implication is that she thinks they should say it's unconstitutional.

So, first off, what on earth is she thinking saying that the Court is not following the people when 67% of people support it? Granted, support has declined, but it's still very high, probably higher than among the Justicies.

But more importantly, there's a big difference between people having doubts about the death penalty as a policy matter and it being unconstitutional. It can be a horrible policy but still be constitutional (or vice versa). There's not always going to be a connection between the two. The Court's job is to address constitutional issues, not make policy, right? I guess for some people these issues are one and the same, which is something that is depressing to be reminded of.

The Volokh conspirators dissect the issue here and here.

The Role of the Judiciary

Sometimes I feel like too much of this blog is spent criticizing, so I'm happy to be able to offer effusive praise for something. Professor Robert F. Nagel of the University of Colorado Law School has a wonderful piece explaining why the Supreme Court should not develop new rights, either from the left or the right. I can't say it better than he can, so I'll quote some key passages:

Do you have a bright idea (albeit a controversial one) that you would like to see implemented as national policy? Would you prefer to achieve this without the inconvenience of having to persuade Congress and the president, let alone the American people? Well, here's how to do it.

First, go to law school and afterwards clerk for a justice of the Supreme Court. Then become a professor at a leading law school. Earn the respect of other legal scholars by writing academic articles and books. Gain broader visibility by publishing op-ed pieces and operating a blog. Next, write up your bright idea as an article for an influential law review and get an important think tank to invite prominent legal scholars to discuss your article. Then, wait for some litigators to pick up your idea and hope the Supreme Court will eventually impose it as a requirement of constitutional law. It doesn't always work, but--at least as compared with the options available to most people--it is worth a shot.

This strategy has often been used by left-wing law professors and even by some conservatives. However, with the Court increasingly dominated by the likes of Antonin Scalia and John Roberts, who claim to be committed to judicial restraint, it might seem that clever constitutional arguments are no longer a likely way to influence national policies. UCLA's Eugene Volokh, one of the nation's most prolific and insightful young legal scholars, doesn't think so. And, sadly, he may be right.

...

This is how lawyers have come to dominate moral debate in the United States. They elevate their preferences to constitutional rights and then claim that profound moral beliefs held by others are inadequate to justify restrictions on the newly created rights. You see, rights cannot be abridged except for highly convincing reasons, and judges (enlightened by the arguments of litigators and law professors) will decide what is convincing.

Creating a constitutional right to medical self-defense would be a definitive sign that the conservatives who sit on the Supreme Court are not serious about establishing a saner, less imperial role for the judiciary--indeed, that just about nobody in the legal
profession is. This would be further evidence, if more is needed, that if non-lawyers want to retake control over public decision-making, they should not expect much help from members of the profession whose inordinate power is based on the modern conventions of constitutional argument.

This is a powerful point, and he makes it as well as it can be made. In my experience, it's the kind of point that people instinctively disagree with, but when it is explained they will often come around. It's great that Professor Nagel is taking the time to explain.

Brownback for President?

The NY Times notes that Sam Brownback:

blocked the confirmation of a woman to the federal bench because she attended a same-sex commitment ceremony for the daughter of her long-time neighbors

Ugh. I can understand his general concern about an activist judiciary in the area of gay marriage, but this seems to go too far. The underlying problem is the undemocratic nature of the judiciary. I think we need to address that issue head on, rather than trying to deal with it in the context of specific issues like gay rights.