Jewish World Review June 28, 2002 /18 Tamuz 5762
Supreme Court reads polls, too
Executions of the mentally retarded are unconstitutional, the Supreme Court has ruled. That's a relief.
Nevertheless, an interesting backlash has erupted against the Supreme Court's decision, not so much for what they decided as the way they decided it.
The complaint is that the high court's 6-to-3 decision is based not so much on legal precedent as on trends among the states, foreign countries, religious leaders, professional organizations and, most controversially, the results of opinion polls.
Such are the sources cited by Justice John Paul Stevens, writing for the majority, as reasons to believe that "a national consensus has developed" that views executing the retarded as a violation of the Eighth Amendment's ban on "cruel and unusual punishments."
This novel endorsement of the power of polls brings to mind satirist Finley Peter Dunn's fictional bartender Mr. Dooley's turn-of-the-century observation: "The supreme coort (sic) always follows th' iliction (sic) returns."
Indeed, fumes a disapproving editorial in The Wall Street Journal, "We know the Court will now make up its mind based on as little as a Gallup poll."
Well, not quite. This opinion is grounded primarily, as all court opinions must be, in law, evidence and precedent, not polls.
But, when the court is asked to rule on something as changeable as society's definition of "cruel and unusual," it is not unreasonable for the Supremes to reach out from their lofty legal towers to all sources, even opinion polls, to find out what our society views as "cruel" or "unusual" these days.
As Chief Justice Earl Warren wrote in a 1958 decision, the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."
Locking someone in stocks on the public square was not viewed as cruel or unusual punishment in this country's colonial days. Now it is. At one time, execution was not widely viewed as excessive punishment for the crime of rape. But, by the late 1970s, enough states had ruled capital punishment to be excessive for rape, Stevens writes, that the Supreme Court held it to be unconstitutional in Coker v. Georgia in 1977.
When the court last ruled on executions of the retarded 13 years ago in Penry v. Lynaugh, it decided that such executions did not violate the Eighth Amendment. Since then, state legislatures have marched slowly but steadily against such executions. Since then, the number of states banning such executions has grown from two, Maryland and Georgia, to 18 and the trend shows no signs of moving the other way.
Could the high court have been following a hidden agenda? Justice Antonin Scalia apparently thought so. "Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members," Scalia exploded in his stinging dissent.
Funny, but a lot of people said the same thing back in 2000 when a Scalia-led majority of the high court interrupted Florida's recount of George W. Bush's contested victory over Al Gore. In that case, as Mr. Dooley might say, the Supreme Court not only followed but actually decided the election returns.
The court's credibility took a beating but survived that controversial decision in 2000. I think it will survive this one, too.
However, states that still have executions do face a new challenge. The Supreme Court did not offer any guidance as to who is to be considered too retarded to be executed. If Daryl Atkins, with a 59 IQ, is too retarded to be executed, for example, what about another man who has a 60 IQ? How high do you have to score to be eligible to be killed?
State standards differ. It may be just a matter of time before another court decision rules that such interstate inconsistency is unconstitutional or, at least, "cruel and unusual" discrimination against killers with high test scores.
Enjoy this writer's work? Why not sign-up for the daily JWR update. It's free. Just click here.
Comment on JWR contributor Clarence Page's column by clicking here.
06/25/02: 'The Body' bites, then bows out
06/21/02: Punishment first, then the crime?
06/18/02: Reporting still risky for Haiti's press
06/14/02: Bush's security plan leaves large gaps
06/04/02: Fix FBI's culture gap first
05/28/02: Fidel's new apartheid for tourists
05/21/02: Now McKinney's lunacy sounds like the Democratic Party line
05/19/02: A paradox of historical proportions
05/14/02: 'Murphy Brown' revisited in age of Ozzy
05/10/02: America looks like a model of tolerance and inclusion
05/07/02: Forget it, Bill, you're no Oprah
04/26/02: Mapping out ethnic and racial change
04/23/02: A game of another color
04/19/02: It's high time to open up pot-law debate
04/11/02: 'Osbourne' family values rock, aging Ozzy quakes
03/22/02: Zimbabwe election leaves world sleepless
03/19/02: A slur? Where is thy sting?
03/15/02: A Pearl of wisdom for reporter's unborn son
03/12/02: Army race and gender policies on trial
03/08/02: A short list of losers to be left behind
03/05/02: Revenge of the 'mediasaurus'
02/26/02: Jihads aren't just for Muslims
02/26/02: It's hard to be 'objective' during wartime
02/19/02: Hollywood's new villain: Your HMO
02/12/02: Father of 'Manchild' leaves lasting message
02/08/02: $nookering the reparations crowd
01/31/02: Prisoners of a War of Words
01/29/02: One more Enron woe: Al Sharpton & company
01/25/02: Searching for slaves in bin Laden's attic
01/22/02: Andrew Young's newest 'friend'
01/08/02: Hard-earned lessons from 9-11
12/18/01: Whatever happened to questions about the birds and the bees?
12/14/01: The "White Negro" Taliban?
12/07/01: Jackson's turn to gloat
11/27/01: Friendly warning from a lover of liberty
11/21/01: The face of hunger is changing
11/15/01: Our troubled sense of trust
11/08/01: Lessons about terror from the 'hood
11/06/01: Getting used to the 'new normal'
11/02/01: Wicked ways to make them talk
10/30/01: It's not just about bin Laden
10/26/01: More than mail fell between the cracks
10/23/01: Terrorists threaten urban recovery, too
10/18/01: Sometimes, assassination warranted
10/15/01: Self-censorship rises again
10/12/01: Contradictions illustrate the complicated nature of the new terrorism
10/05/01: Look who's 'profiling' now
10/01/01: Don't trash liberty to save it
09/28/01: Life, love and cell phones during wartime
09/24/01: How to catch an elusive terrorist
09/21/01: The war I was waiting for
09/17/01: When rage turns to hate
09/13/01: Terror attack tests US, let's give right response
09/06/01: U.S. should have stayed and argued
09/04/01: Columbine killer's parents get upclose and personal
08/31/01: Virtual kids? Log me out
08/28/01: Two Africans, one black, one white, same fight
08/23/01: Sharpton for president
08/20/01: Shaking up the rules on keeping secrets
08/16/01: Bush's u-turn on racial goals
08/09/01: Outsider Bubba comes 'in' again
08/06/01: Not ready for 'color-blindness' yet
08/02/01: Immigration timing couldn't be better
07/26/01: Summer of Chandra: An international traveler's perspective
07/17/01: Overthrowing a régime is only the beginning
07/10/01: Big Brother is watching you, fining you
07/05/01: Can blacks be patriotic? Should they be?
06/19/01: Get 'real' about marriage
06/12/01: Amos, Andy and Tony Soprano
06/07/01: Getting tough with the Bush Twins
06/05/01: Bringing marriage back into fashion
05/31/01: "Ken" and "Johnnie": The odd-couple legal team
05/24/01: Sharpton's challenge to Jackson
05/22/01: Test scores equal (a) MERIT? (b) MENACE? (c) ALL OF ABOVE?
05/17/01: Anti-pot politics squeeze the ill
05/15/01: Was Babe Ruth black?
05/10/01: U.N.'s torture caucus slaps Uncle Sam
05/08/01: 'The Sopranos' a reflection of our times
05/03/01: 'Free-fire' zones, then and now
05/01/01: War on drugs misfires against students
04/26/01: Another athlete gets foot-in-mouth disease
04/23/01: 'Slave' boat mystery reveals real tragedy
04/19/01: McVeigh's execution show
04/12/01: Not this time, Jesse
04/05/01: Dubya is DEFINITELY his own man, you fools!
04/02/01: Milking MLK
03/29/01: The candidate who censored himself?
03/22/01: "Will Hispanics elbow blacks out of the way as the nation's most prominent minority group?"
03/19/01: Blacks and the SATs
03/15/01: The census: How much race still matters in the everyday life of America
03/12/01: Jesse is a victim!
03/08/01: Saving kids from becoming killers
03/01/01: Parents owe "Puffy" and Eminem our thanks
© 2001 TMS