Political Questions, Judicial Questions, and the Problem of Washington v. Glucksberg

Over a century and a half ago, Alexis de Tocqueville famously said, Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Physician-assisted suicide superbly illustrates Tocqueville\u27s acute observation. For a number of years, assisted suicide was the prototype of a (nonpartisan) political question. Interest groups brought it to public attention. Public discussion of it flourished. Legislatures debated it. Citizens in several states decided in referenda whether to make it legal. Almost suddenly, however, this classic political process was transformed into a judicial one by the startling and strongly stated opinions of the Second and Ninth Circuit Courts of Appeals. These opinions bid fair to take the power of decision away from political institutions by finding in the constitutional right of privacy an entitlement to the help of a physician in committing suicide. Now, in a case called Washington v Glucksberg (and, of course, its companion case, Vacco v Quill), the Supreme Court has reversed the decisions of the Second and Ninth Circuits