June 2008 Vol. 106 No. 8 THE REVIEW

De-Moralized: Glucksberg in the Malaise

Steven D. Smith

Ten years down the road, what is the enduring significance of the “assisted suicide” cases, Washington v. Glucksberg and Vacco v. Quill? The cases reflect an unusually earnest, but nonetheless unsuccessful, attempt by the Supreme Court to grapple with a profound moral issue. So, why was the Court unable to provide a more satisfying justification for its conclusions? This Article, written for a symposium on the tenth anniversary of Glucksberg, discusses that question. Part I examines some of the flaws in reasoning in the Glucksberg and Quill opinions and suggests that these flaws stem from the opinion writers’ inability to recognize and articulate their underlying normative assumptions. More specifically, both the Justices and the lower court judges, on both sides of the issue, evidently attributed normative significance to something like a “natural course of life” (even when they denied doing so), but none were willing or able to make this attribution explicit. Part II discusses the modern separation of moral reasoning from the metaphysical or theological perspectives that might once have endowed “nature” with normative significance, and it suggests that the deficiencies in Glucksberg-Quill are evidence of how that separation renders moral reasoning problematic. The Conclusion wonders whether in this situation, a renewed emphasis on formalism or tradition might make legal reasoning less unacceptable.

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