The Atlantic website has this article:

The Supreme Court’s Death Drive
Five conservative justices are bent on defending a policy that is unpopular, expensive, and cruel.

The article, by Garrett Epps, a “professor of constitutional law at the University of Baltimore,” has some good points about why the current Supreme Court has heard some death penalty cases they really had no compelling reason to hear.

The headline, however, criticizing the Suprement Court for “defending” an “unpopular policy,” demonstrates everything fundamentally wrong with modern legal idiocy – er, belief.

The Supreme Court decides issues of constitutionality. It does not make policy. It does not defend policy. It doesn’t consider the popularity of a policy. It does not consider its expense. It can consider its cruelty, because the 8th Amendment to the Constitution prohibits the imposition of punishments that are “cruel and unusual.”

But the notion that the Supreme Court is supposed to decide policy is patently wrong. It is not a nine person legislative body with life tenure. It rules on constutitonal issues, and the Constitution absolutely allows for really, really bad policy. As the second Justice John Marshall Harlan noted

The Constitution is not a panacea for every blot upon the public welfare nor should this court . . . be thought of as a general haven of reform movements.

Reform movements belong in the legislature. They belong in the pulpit. They belong in editorials and essays. They do not belong in the Supreme Court.

Legislatures and juries are doing the right thing by ending the death penalty. Let them.