Is Capital Punishment Unconstitutional? And Even If We Think It Is, Should We Want the Supreme Court to So Rule?

Given that the Supreme Court of the United States, in protecting constitutionally entrenched human rights, exercises the power of judicial ultimacy, should the Court exercise the power deferentially? That is, should the Court defer to some degree to the judgment of the members of the legislative and/or executive branches of government whose law or policy is in question and who presumably have concluded that the law or policy does not violate any human right? The choice here is best understood as a choice between two different judicial attitudes or orientations. For a judge to adopt a deferential attitude-for her to be oriented deferentially-is for her to be prepared to rule that a challenged law (or policy) does not violate a constitutionally entrenched human right if the claim that the law does not violate the right is "not unreasonable." (A claim that a law does not violate a right is not unreasonable if rational, well-informed, and thoughtful legislators could affirm the claim.") By contrast, for a judge to adopt a non deferential attitude is for her to be prepared to rule that a challenged law violates a human right if in the judge's own view the law violates the right-even if the claim that the law does not violate the right is not unreasonable.