Written by Chris Arledge

The United States Supreme Court recently decided Baze v. Rees, a case challenging the State of Kentucky's lethal-injection protocol. The Court's actual decision is of limited importance, and is unlikely to take its place in the pantheon of historic rulings. In essence, seven of the nine justices concluded that Kentucky is free to continue using the same three-drug blend that it and just about every other state uses when executing prisoners. This ruling will not send shock waves through the legal world.

But the case is important for a different reason: the frankness with which Justice John Paul Stevens, the most senior and one of the most liberal members of the Court, contends that a Supreme Court justice is free to impose his own policy preferences under the guise of constitutional interpretation.

For many years, the legal world has debated what role judges should play in interpreting the constitution. According to the originalist school of thought, the judges' role is merely to determine what the words of a constitutional provision meant at the time it was ratified and apply that meaning to the present circumstance. The theory is that only the people through legitimately enacted constitutional provisions have the authority to bind their elected representatives, and therefore judges are not free to create new constitutional provisions to suit their own tastes.

This school of thought has been rejected, however, by most legal academics and judges, who assert that the constitution is a living document and has no fixed, unalterable meaning. For them, the judge's role is to aid the process by which the constitution changes to fit with the times. This means that the Court will sometimes discover new rights that earlier courts had never seen, even when the actual text of the constitution says little or nothing on the topic. For example, the Supreme Court has determined that the constitution provides for a right to privacy that protects the right to abortion under many circumstances, despite the fact that the words "privacy" and "abortion" appear nowhere in the document. In discovering new rights in this way, the Court enshrines new protections that it and others believe are necessary; but it also takes the power to govern out of the hands of the people and their elected representatives.

Originalists have long complained that when the living-constitution theorists interpret the constitution in this way, they are not engaged in interpretation at all, and are simply writing their own policy preferences into the document. Proponents of a living constitution strenuously deny the accusation. But now, one of the foremost practitioners of the living-constitution school has exposed this theory of "interpretation" for what it really is.

In his concurring opinion in Baze, Justice Stevens concludes that the Court's majority is right to uphold the Kentucky lethal-injection protocol because existing Court precedent requires that result. But Stevens also challenges the idea that capital punishment is constitutional at all. Note that this is difficult to argue from the text of the constitution that capital punishment is unconstitutional. After all, the constitution itself makes clear that government can "deprive" persons of "life" if due process is followed. For this reason, arguments against the constitutionality of the death penalty almost always rest on bases outside of the constitution's actual words.

Stevens' argument is no different. Stevens asserts that only three societal purposes could legitimately support capital punishment--incapacitation, deterrence, and retribution--but he believes that none of them actually does so. He does not believe that incapacitation justifies the death penalty because the state is always free to incarcerate prisoners for life without the possibility of parole. He also finds "questionable, at best" the argument that the death penalty is an effective deterrent, though he concedes that some recent studies do support that contention. And, finally, Stevens rejects retribution as a valid rationale for the death penalty, arguing that because the constitution demands that the death penalty be painless (or as close to painless as possible), the condemned prisoner is necessarily protected from enduring punishment comparable to the crime he or she has committed.

There is very little new or important about Justice Stevens' analysis of incapacitation, deterrence, and retribution. All that he says has been said before, and there is undoubtedly room for people of good will to disagree on these questions. But what is striking about Justice Stevens' argument is what comes next: an admission that an analysis of these factors really doesn't matter anyway. According to Stevens, the Court's death-penalty jurisprudence "contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." That is, the members of the Court have the right to decide for themselves what does or does not constitute a constitutional violation. "I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or policy purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.'"

This is a remarkable statement. As Justice Antonin Scalia wrote in his own concurring opinion, "[p]urer expression cannot be found of the principle of rule by judicial fiat." Stevens does not conclude that the text of the constitution compels a finding that the death penalty is unconstitutional. He does not conclude that the arguments supporting the death penalty are so bereft of merit that no reasonable person can believe them. Rather, he simply concludes that in his judgment, the death penalty isn't right. And as Justice Stevens goes, so goes the Eighth Amendment to the United States Constitution. Hence, the beliefs of the majority of voters in Kentucky, or the majority of legislators in that state, or of those academics whose studies have found that the death penalty deters murder, or those philosophers who have concluded that some crimes are so awful that only the death penalty can provide a fitting punishment, or any other people who support the death penalty for their own reasons should have no say in the matter. Justice Stevens thinks the death penalty is wrong, and that's that.

We should thank Justice Stevens for his frankness, since dissembling has long cloaked what the living-constitution theorists actually do when they "interpret" the constitution. And what they do is dangerous. Abraham Lincoln once warned that "if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal." Lincoln's warning is prescient under all circumstances, but it is especially so if our unelected judges intend to irrevocably decide the great issues of the day based on nothing more than their own personal policy preferences.

Far too many Americans--politicians and private citizens alike--have been far too comfortable turning to litigation to achieve societal changes that they could not accomplish at the ballot box. But tactical political victories can have devastating long-term consequences, and a free people should be slow to cede its authority to an unelected, unaccountable judiciary. It is past time to reject the judiciary's claimed right to enforce its own policy preferences and demand, instead, the judges interpret the constitution, not re-write it. If we do not, we may eventually come to find that this country merely shirked one autocracy for another.

Note about the author: Chris Arledge is a lawyer and partner of the firm Turner Green Afrasiabi & Arledge LLP. Chris is a former clerk on the United States Court of Appeals for the Ninth Circuit, has taught constitutional law at California Baptist University, and currently litigates intellectual property disputes.