What’s Wrong with Democracy? A Critique of “The Supreme Court and the Politics of Death”

The primary thesis of Professor Stephen Smith’s provocative article The Supreme Court and the Politics of Death appears to be that the death penalty is a political tool used by ambitious prosecutors and that—despite wide public support for capital punishment—it is apparently the task of an enlightened judiciary to move towards its restriction or even its functional abolition. In this brief response, we beg to differ. Capital punishment is a proper punishment in the American criminal justice system, whose popular support should not mark it for judicial undermining, but rather judicial support. Professor Smith should be more trusting in the outcome of democratic processes.

Massachusetts v. EPA: The Inconvenient Truth About Precedent

Every so often, the Supreme Court renders a decision that is difficult to separate from the politics of the day—not that Justices consciously promote a political party or purpose, but sometimes political inclinations insinuate themselves into the Justices’ thinking in a way that colors their approach and tilts toward one outcome. It happens less often and less boldly than is often supposed. But it does happen.

This Term’s decision in Massachusetts v. Environmental Protection Agency (“Mass. v. EPA”) is just such a decision. In their eagerness to promote government action to address global warming, the Justices stretch, twist, and torture administrative law doctrines to avoid the inconvenient truth that this is not a matter on which judges have any real role to play.

The Significance of Massachusetts v. EPA

Last month, the Supreme Court handed down its decision inMassachusetts v. Environmental Protection Agency(“Mass. v. EPA”), its first case dealing with climate change. The decision was an enormous, if narrow, victory for environmentalists: it legitimized their concerns about global warming and their claims that the administration was not doing what it should to address it. Whether the decision was a great victory for the environment remains to be seen, but it will affect the policy debate for years to come.