At Bloomberg View, Noah Feldman looks at Justice Samuel Alito’s complaint in this week’s lethal injection case that death penalty opponents have engaged in “guerrilla warfare” by persuading pharmaceutical companies to withhold sales of their drugs to states that will use them in executions.
But I’m not sure these analogies hold. If you accept Alito’s guerrilla warfare comparison (and I think it’s way overwrought), the anti-abortion and gay rights examples — at least in the examples Feldman provides — are engaging in what you might call legal guerrilla warfare. Anti-abortion advocates are trying to make abortion de facto illegal by imposing so many restrictions that it becomes nearly impossible to obtain one, even though the procedure is still technically legal. It’s the same with Feldman’s characterization of the gay rights movement, although I’m not sure that’s still the case. The gay marriage cases we’re seeing today are pretty straightforward and big-picture.
What anti-death penalty forces did, however, was different. And it seems to me that what they did was actually more legitimate than entrusting such a profound decision about whether the state should be permitted to take lives to nine legal academics. They took the issue to the parties who have a direct stake in the issue. If a pharmaceutical company can be persuaded that its products shouldn’t be used in executions, they have every right to refuse to sell to states that will use the drugs for that purpose. That isn’t guerrilla warfare, it’s free-market democracy.
In fact, you could argue that this is a much healthier way of addressing contentious moral issues. Let’s go back to abortion rights, for example. I support abortion rights. And I’d much rather see anti-abortion groups try to minimize the number of abortions by promoting adoption, or organizing financial and emotional support for vulnerable pregnant women, than by going to the courts to demand blanket prohibitions. (In the real world, of course, they do both.) I also support gay marriage and gay rights, but I’m far more comfortable with publicly shaming a business like the New Mexico cake decorators who refuse to service gay weddings than forcing them to do so under the color of law. Civil society solutions aren’t perfect, but they’re usually (but not always) preferable to edicts.
Of course, capital punishment is about state killing. So at some point, a direct court ruling on its legitimacy would be inevitable. But I don’t see anything illegitimate or “guerrilla” about taking the moral case against the death penalty to the people and organizations who have a direct stake in how it will be carried out. The Supreme Court can rule that the death penalty is constitutional. Legislatures can vote to keep the death penalty legal. But neither can compel private actors to participate if their consciences dictate otherwise.
If drug companies decide that they don’t want their drug used in executions, that doesn’t mean states then get to resort to unconstitutional methods of execution. The Constitution isn’t conditioned on the good intentions of one faction or another. If the states can’t come up with an alternative that passes muster, they’ll have to stop executing people until they do.