Douglas A. Berman*
“First, do no harm,” is a common aphorism for the medical profession. If the Supreme Court was judged by this principle, its work in Hill v. McDonough1 might lead some to urge revoking the justices’ licenses. The Court’s decision to consider Clarence Hill’s challenge to Florida’s lethal injection protocol resulted in widespread legal confusion and the disruption of executions nationwide. The Court’s subsequent ruling in Hill raised more legal questions than it answered and ensured that death row defendants would continue to disrupt scheduled executions by pursuing litigation over lethal injections protocols.
But, though harmful to the orderly administration of capital punishment, the Supreme Court’s work in Hill has its virtues. The Court’s consideration of Hill’s claims has brought greater (and long needed) scrutiny to the particulars of lethal injection protocols. And the narrow ruling in Hill presents a valuable opportunity for other institutions to grapple more fully with the difficult issues raised by any method of state killing.
Consequently, Hill might be lauded for reflecting Professor Alexander Bickel’s wise insight that the Supreme Court ought sometimes seek to avoid resolution of certain constitutional claims. Professor Bickel suggested that the Supreme Court should, in some settings, avoid definitive resolution of certain constitutional questions to allow other (more democratic) branches of government to take a second look at important issues.2 But, for the Hill decision to produce
* William B. Saxbe Designated Professor of Law, Moritz College of Law at the Ohio State University.
1 126 S. Ct. 2096 (2006).
2 See Alexander Bickel, The Least Dangerous Branch 111–98 (1962) (chapter discussing at length “the passive virtues”); see also Guido Calabresi, A Common Law for the Age of Statutes 16–30 (1982) (discussing Bickel’s visions of and suggestions for constitutional adjudication).