I have a novel and controversial theory of my own, and here it is: Judges ought to follow the law. If the state Legislature and the state constitution, not to mention the U.S. Constitution and the U.S. Supreme Court, support the death penalty, then judges should be required to take notice and not just vote their feelings or their politics.
The New York judges are being invited to override the Legislature by endowing themselves with special anything-goes authority. The inventive professors argue that "cruel and unusual punishment" has a unique historic meaning in New York state, and the phrase was intended to take battles over the death penalty "out of the theater of political judgment."
That's a revealing phrase. Attempts to take issues "out of the theater of political judgment" are mainstream now, particularly among activists on the left who know they can't get a majority behind them. So instead of old-style political organizing to sway voters, we are seeing tactics designed to frustrate and circumvent majorities.
The most obvious arena for anti-majoritarian politics is, of course, the courts. The left says the right is trying to "pack the courts" and "turn back the clock," but most people on the right and in the center would settle for judges willing to follow the law and resist canceling out the voters by imposing their personal values.
Litigation as a substitute for politics is another growing problem, causing former labor secretary Robert Reich to raise the question of whether his fellow Democrats still believe in democracy. He was referring to the suing of tobacco companies, gunmakers, and perhaps the producers of fatty foods and liquor as "end runs around the democratic process." Reich called it "faux legislation, which sacrifices democracy to the discretion of administration officials operating in secrecy."