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Making sausage: The Ninth Circuit's opinion.

As I write, the Supreme A Court has just agreed to hear Compassion in Dying v. Washington and Quill v. Vacco, the two cases in which United States circuit courts of appeals held that a state may not constitutionally prohibit physicians from helping a terminally ill person who wishes to commit suicide to do so. These cases have already received lavish comment and criticism, and no doubt the Supreme Court's opinion will garner even more. Reasonably enough, most of this analysis addresses the merits of physician-assisted suicide as social policy. I, here, want to talk about how setting bioethical policy through constitutional adjudication actually works and how its usefulness is diminished by some practical deficiencies. Courts are often thought well-equipped to resolve social issues because they are guided by the thought and wisdom that animated the Constitution. Sometimes this argument has some truth. But bioethical questions are generally resolved under a provision (the Fourteenth Amendment) that says only that no state shall "deprive any person of life, liberty, or property without due process of law." These words, noble though they are, give courts little insight and little direction. The Supreme Court has been able to find in them such a suspiciously wide range of lessons--from the unconstitutionality of statutes limiting a woman's right to an abortion to the unconstitutionality of statutes limiting the hours an employee can be required to work--that one may begin to wonder just what the justices have been consulting. The vagueness of the Fourteenth Amendment throws judges back on their own resources. Because judges vary in experience and talent, these resources vary. But all judges are lawyers. A lawyer's training is centrally about analyzing legal documents, particularly judicial opinions. It does little, for example, to equip lawyers to understand and respect empirical evidence about social behavior and does too much to convince them that the best evidence about how the world works is the particular facts of a litigated case. The practice of law may remedy some of these ills, but today most sophisticated legal practice is too specialized to expose lawyers broadly to social issues. Yet once appointed, judges must become the broadest kinds of generalists. In short, judges are lawyers who--narrowly trained and narrowly experienced--are unlikely to come to the extraordinary range of problems they face with expertise or understanding. What is worse, judges are less well situated to learn about these problems than one might expect. True, the trial-court judge presides over proceedings in which evidence is introduced. But a systematic flaw of constitutional adjudication is that it promulgates grand principles on the basis of a single case's facts. Courts tend to assume that the case before them typifies the social problem at issue and that the parties before them represent all relevant points of view. And since the parties, not the judge, decide what evidence will be introduced, the judge does not hear what will not benefit the parties, and the quality of the information introduced crucially depends on the wit and learning of the attorneys the Quinlans or the Cruzans happen to hire and of the too often modestly gifted political appointees and civil servants who represent state governments. To be sure, interested groups may file "friend of the court" briefs. But in my experience, appellate judges (at least) rarely read them. Suppose, though, that this haphazard process leaves the federal trial judge well informed. That judge's decision will only affect the people within that judge's district. If several states are to be reached, the case must be presented to a circuit court of appeals. If the whole country is to be reached, the case must be taken to the Supreme Court. Ironically, though, as the case's reach widens, the judge's contact with the evidence shrinks. The parties normally reprint only a few significant documents from the trial record for the appellate judges. …