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Response or Comment

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Recently, the Supreme Court has encountered cases that concern perhaps our weightiest bioethical issue-how medical care is to be rationed. But this does not mean that the Court must therefore assess the justice of rationing, as many people incited by many journalists now fondly and firmly believe. In explaining why, we begin with a story about how Learned Hand remembered saying one day to Justice Holmes, "Well, sir, goodbye. Do justice!" Holmes turned quite sharply and said: "That is not my job. My job is to play the game according to the rules." If the Court doesn't do justice, what does it do? Partly, it does the crucial if dismal work of interpreting ambiguous federal statutes. But more centrally, the Supreme Court is a border guard that confines legal actors within the boundaries of their authority. It shows them where the frontiers are and sends them packing when they cross illegally. It tends the borders between individuals and their governments, between the state and federal governments, among the branches of the federal government, and even within branches of government, especially the judiciary.


Reprinted with the permission of the Hastings Center Report and Wiley-Blackwell.