Laurence Tribe has an op-ed in the Washington Post arguing that the Supreme Court should strike down the death penalty as unconstitutional. His argument is that the death penalty “violates human dignity and constitutes cruel and unusual punishment.” I actually agree with him, in part, and I think that we should abolish the death penalty. However, the mechanism for doing so is through state legislatures or a constitutional amendment, not through the Supreme Court.
It’s odd to me that Tribe chooses to set forth his case in an op-ed at all, given that he obviously isn’t counting on ordinary legislative means to put an end to the death penalty in America. If all you need to do is convince the Court, then why care about convincing the public?
I suppose it makes some sense. If people continue to lose regard for the Supreme Court, viewing it as just another political branch of our government whose rulings are determined by the party that picks the judges, then trying to sway popular opinion is rational, as that will ultimately determine who sits on the Court. And of course, Tribe, like many other progressives, wants the Court to function as a policy-making instrument to advance progressive ends like the abolition of the death penalty, gay rights, and abortion.
But beyond that, if the Court oversteps its bounds too much, it will undermine its own legitimacy. It is the Constitution of the United States that created the Supreme Court and provided the Court with its judicial powers. If the Supreme Court flagrantly disregards the meaning of the Constitution, then it effectively saws off the branch on which it sits. As Justice Scalia said in his dissent in Obergefell v. Hodges:
With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.
The Court cannot enforce its own judgments. It can only go so far in reinterpreting the Constitution before someone will say “no.” Indeed, this is already happening on the fringes. Roy Moore, a former Alabama judge, was removed from his seat for disobeying a federal court order. He is now the Republican nominee for Alabama’s seat in the Senate.
I don’t like Roy Moore. I consider him and people who support him a threat to the rule of law in this country. But it’s unsurprising that figures like him would pop up, given the Supreme Court’s lawless advocacy of progressive causes. If the Court doesn’t start to hold itself back from resolving all the most controversial political issues on the basis of Anthony Kennedy’s moral philosophy, Moore will start to become mainstream, no matter how many op-eds Larry Tribe writes.