Hastings Constitutional Law Quarterly


Seth F. Kreimer


In this Article, Professor Kreimer assesses the assisted suicide cases of last Term as contributions to constitutional jurisprudence. He suggests that the cases mark an end of a generation of discord over the legitimacy of substantive due process and a triumph of the proponents of extratextual fundamental rights, Nonetheless, he argues that Justice Rehnquist's majority opinion cannot sustain its claim that an "established method" of substantive due process analysis rooted in history and tradition explains both the Court's abortion cases and Glucksberg. Likewise, while Justice Souter's call for "arbitrariness review" rooted in the common law can account for the outcome in Glucksberg, it lacks mooring in the Constitution.

Professor Krelmer explicates the focus on physical suffering that informs the concurrences of Justices O'Connor, Breyer, and Ginsburg and maintains that such focus is both constitutionally supportable and normatively informative. Finally, he advances the proposition that whatever their individual failings, the opinions in Glucksberg taken as a whole respectfully address the arguments on all sides of a tragic conflict and redeem the promise of Roe.