"An unforgivable breach of blogging ethics"

That's what Mark Kleiman calls Eugene Volokh's reversal of opinion on the issue of imposing painful punishments for heinous crimes.

There's such a thing as blogging ethics? I find that I agree with both sides of this debate. I think that the culture of a society should govern what it considers suitable punishments, because the law must be seen by the people as just. That's why I support capital punishment, albeit by as humane a means as we can manage. It's also why I support imposing limits on appeals. The fact that death sentences take such a long time to be carried out has hurt the respect of the public for our legal institutions.
It's also why I'd support a Constitutional Amendment to limit the power of the courts to "interpret" new rights into that document, to base opinions on "international consensus" and to take issues like sodomy, marriage and pornography away from legislatures without a finding of gross injustice. How can this country allow state and local governments to ban sales of liquor, for example, but not to prohibit homosexual behavior? The courts aren't equipped to inquire into public opinions in the way that legislatures can, and they have a conscious reluctance to consider it, if they could. That's why they must limit themselves to interpreting laws and the Constitution in light of what the people expect, not their own opinions as to what the ideal society would be like. At the time it was decided the Dred Scott decision, as obviously wrong as it seems today, reflected the consensus of Americans. The abolitionist position was considered radical and threatening to the Union. Abraham Lincoln knew that, and it was only after years of war that he changed his opinion. The Civil War put an end to the idea that we are a federation of independent states, and necessarily so, but we honored the original understanding in our tradition of leaving most issues to the states, until relatively recently.

Ultimately, courts, like all other parts of government, derive their power and existence to the consent of the governed. They are properly insulated from demagoguery and mob rule, but they must always be aware that their authority derives from reason and principle, not from their inherent power to enforce anything. By getting too far ahead of the people they rule, judges undermine their own authority, and threaten the unity and peace of the nation. You can see that proven in the Senate fights over judicial appointments. The Supreme Court allowed itself to be sucked into issues that are so divisive that it has become a political institution. The Justices should be worried about the impact of their imprudence on the country as a whole.