Protecting Constitutionally Entrenched Human Rights: What Role Should the Supreme Court Play? (with Special Reference to Capital Punishment, Abortion and Same-Sex Unions)

Abstract:     
This Essay pursues one of the inquiries begun in my new book, TOWARD A THEORY OF HUMAN RIGHTS: RELIGION, LAW, COURTS (forthcoming, Cambridge University Press): What is the proper role of the United States Supreme Court in protecting constitutionally entrenched human rights?

Some contemporary legal theorists are hostile to judicial review (e.g., Mark Tushnet and Jeremy Waldron). In another Essay, I defend judicial review - but judicial review of a sort different from that with which we are familiar in the United States. I call the sort of judicial review I defend the power of judicial penultimacy. (The sort of judicial review with which we are familiar in the United States is the power of judicial ultimacy.) See Michael J. Perry, Protecting Human Rights in a Democracy: What Role for the Courts? http://ssrn.com/abstract=380283. In this Essay, I argue for a second best: Given that the United States Supreme Court exercises the power of judicial ultimacy, the Court should exercise that power in a Thayerian (deferential) manner.

I then illustrate my position by discussing three constitutional controversies, each of which implicates an issue at the epicenter of the American culture wars: capital punishment, abortion, and same-sex unions. First, I argue that capital punishment violates the Eighth Amendment, but I then explain why the Supreme Court should not so rule. Second, I contend that even if one concludes that state bans on pre-viability abortions violate the Fourteenth Amendment, one should not want the Court to so rule. Third, I argue that state refusals to recognize - state refusals to extend the benefit of law to - same-sex unions violate the Fourteenth Amendment, but that nonetheless, the Court should not - not yet - so rule.

A strong case can be made that the United States Supreme Court should have, not the power of judicial ultimacy, but only the power of judicial penultimacy. For better or worse, however, the Court has the power of judicial ultimacy. Given that the Court has this power, what role should the Court play in protecting constitutionally entrenched human rights? In his classic work, THE LEAST DANGEROUS BRANCH (1962), Alexander Bickel wrote: "The search must be for a function . . . which differs from the legislative and executive functions; . . . which can be so exercised as to be acceptable in a society that generally shares Judge [Learned] Hand's satisfaction in a 'sense of common venture;' which will be effective when needed; and whose discharge by the courts will not lower the quality of the other departments' performance by denuding them of the dignity and burden of their own responsibility." As this Essay indicates, I'm inclined to think that in exercising its power of judicial ultimacy in a Thayerian fashion, the Court would be playing its proper role - it would be serving its proper function - in protecting constitutionally entrenched human rights.

How appealing Thayerian deference is all things considered depends in part on what the implications of Thayerian deference turn out to be for various constitutional doctrines. Although in this Essay I pursue the implications of Thayerian deference for the constitutional controversies over capital punishment, abortion, and same-sex unions, there are many other questions to be answered: Can Thayerian deference accommodate the Supreme Court's most important free speech decisions? Its most important antidiscrimination decisions - including, of course, Brown v. Board of Education? Its most important criminal procedure decisions? Indeed, perhaps we should not generalize across every constitutionally entrenched human right; perhaps there are reasons for thinking that Thayerian deference is appropriate in cases in which certain human rights are at issue but inappropriate in cases in which certain other human rights are at issue - the right to freedom of speech, for example, or the right not to be discriminated against on the basis of a demeaning view about an aspect of one's particularity. In any event, the implications - the consequences - of Thayerian deference surely bear on our estimate of the all-things-considered appeal of Thayerian deference. And, accordingly, my fundamental argument in this Essay, in support of Thayerian deference, is tentative and provisional.

Working Paper Series