Archive for August, 2012

Here are some recent remarks by Justice Kennedy:

It is true that as a matter of operational necessity, we sometimes must settle cases and be concerned with caseloads, backlogs and procedures, but the law ultimately is a search for truth. There is truth in the law. The law has a moral basis. These principles are discernable. It may be that the truth is difficult to find. It may be that we can come close to seeing them without ever really doing it, but we’re not just like Sisyphus on an endless staircase or endless hill. We do come to conclusions that are right and that are true and that are proper. That’s our duty, our duty as professors, as lawyers, and as judges because in the process of trying to find the truth and sometimes doing it, we celebrate freedom, we celebrate the idea of liberty–that is the purpose for our nation and the meaning of our Constitution.

Here are some observations of Richard Fallon (from his book, Implementing the Constitution), discussing the Court’s decisions in Washington v. Glucksberg and Vacco v. Quill:

The Justices’ job is not just to reach personal judgments about how the Constitution, viewed in light of correct moral principles, would best be read as a matter of substantive ideals. The Justices’ role is also, at least as importantly, one of taking into account and sometimes accommodating the reasonable views of others. In the context of the right-to-die issue, the earnestness of the surrounding political discussions reduced and perhaps eliminated the Justices’ comparative advantage in formulating relevant principles and bringing those principles to bear on constitutional issues. The Justices’ role, moreover, is not exclusively one of truth telling about the meaning of the Constitution (as seen in their best personal lights), but is sometimes one, even predominantly, of carrying on a necessarily cooperative project of implementing the Constitution. Success in that project may require knowledge of facts as well as values. At the time of its decisions, the Court had little of the information that might have helped most to inform a sound decision. Conspicuously lacking were reliable studies concerning the impact of rules permitting assisted suicide on the terminally ill, on their doctors and families, on organizations funding and providing health care, and on public attitudes toward life, death, and dying. Under the circumstances, the Justices correctly apprehended that they would have been unfaithful to their roles if, trying to do too much too fast with inadequate resources, they prematurely spoke the truth as they personally saw it and crafted bad doctrine that frustrated reasoned debate and democratic experiment.


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