Tuesday, June 30, 2015
I posted, in America, some thoughts about the Supreme Court's Glossip decision on lethal-injection drugs. A taste:
This case and, more dramatically, this exchange highlight—as did Friday’s decision constitutionalizing same-sex marriage—one of the most important questions in constitutional law: Which divisive and difficult questions of morality and policy does the Constitution leave to the democratic process and which ones has it removed from politics? For about a century, this question has sharply divided citizens and justices alike. When the Court strikes down as unconstitutional a policy that we think is justified, or at least debatable, we are likely to cry “activism!” or “overreach!” When the Court lets stand a policy that we embrace, or at least think is reasonable, we tend to praise it for its “humility” and “restraint.” When it comes to the role of judges and the power of “judicial review,” few of us achieve perfect and principled consistency.
It is possible to think that, for example, abortion should be generally legal while at the same time believe that the Court got it very wrong, in Roe v. Wade, when it declared that the Constitution—rather than elections, legislation and compromise—answers all questions about abortion’s legality and regulation. The same can be said—indeed, Chief Justice Roberts underscored this point in his dissent in Friday’s ruling—about same-sex marriage. And, similarly, one can firmly oppose capital punishment as a failed and unjust policy while believing that, in our system, its abolition depends on persuading our fellow citizens and not five justices of the Supreme Court.