Atkins Revisited
An email conversation about the news of the day.
June 24 2002 11:19 AM


Good morning, Dahlia,

When we left off our Supreme Court conversation last week, you were agonizing over the Supreme Court's Atkins decision barring states from executing the mentally retarded. I had every intention of turning us this morning to a number of lighter topics, briskly treated. But having reread Atkins over the weekend, I need to comment further.


Yes, I am deeply relieved that we are no longer going to execute the mentally retarded in this country. But I am also troubled by the inability of the majority in Atkins to articulate any remotely convincing, reasoned legal basis for its decision. There may be sound judicial bases for invalidating execution of the retarded, but they do not appear in the Atkins opinion. It is also striking—and indicative of the court-centeredness of this court's view of the Constitution—that none of the justices, on either side of the debate, acknowledges that Congress would be a more appropriate national institution than the court to review and restrict questionable state executions.

The majority's argument in Atkins (which is thoroughly savaged by Justice Scalia's dissent) appears to be roughly: The Supreme Court may set aside the laws of 20 states on the basis of the contrary opinion of the 30 other states, as long as the Supreme Court finds "no reason to disagree" with the 30 "better" states. And as the chief justice notes, the court's opinion is no more convincing when it begins counting in the anti-execution views of foreign countries, religions, professional groups, and polling results.

The problem with having five unelected justices make this decision about cruelty is that the key elements of the decision are essentially legislative in nature. The national institution that is far better suited than the court to evaluate the existence of such a social and moral consensus is Congress. Although the dissenters (the chief, Scalia, and Thomas) make a powerful case in Atkins that these judgments about cruelty are legislative rather than judicial in nature, they are ironically the very justices who have in recent years rejected the notion that the national legislature, Congress, has greater institutional capacity than a court to make moral, social, and economic judgments. Joined by Justices Kennedy and O'Connor in cases like Morrison (striking down the congressionally enacted Violence Against Women Act), the chief and the other Atkins dissenters have emasculated the power given to Congress by the post-Civil-War amendments, a power designed to permit the elected national Congress to bring laggard states to full protection of liberty and equality rights, including the right to be free of unusually cruel punishments.

Thus, there could scarcely be a more unintentionally ironic sentence than the chief justice's dissenting statement in Atkins that "in a democratic society, legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people." With Congress reduced to a subservient role by the Rehnquist Court, it should not be surprising to see a rare liberal/moderate majority of justices in Atkins seize for itself a national legislative responsibility that properly should have been exercised by Congress.

The key to the extraordinary, across-the-board activism of the present court is the role played by Justices Kennedy and O'Connor. They both vote with the more conservative justices (the chief and Justices Scalia and Thomas) to strike down acts of Congress that are judged to interfere with state sovereignty and then often turn around and vote with the Justices Stevens, Souter, Ginsburg, and Breyer to strike down a wide variety of "illiberal" state laws. The net result is that these differently constituted majorities of the court wind up substituting judicial judgments—sometimes liberal, sometimes conservative—for legislative judgments at an unprecedented rate. Because this court's overall philosophy is somewhat politically moderate, the effect of its extraordinary assertion of judicial supremacy has not made a striking impact—yet. Just wait a decade.


Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.



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