Is There a Consensus on What Constitutes a Consensus?
An email conversation about the news of the day.
June 24 2002 3:38 PM


Hi Walter,


A disappointing morning for those of us who await vouchers and urine tests with bated breath. Still, today's death-penalty decision is worth a quick comment. I've read it only briefly, so I'll reserve the right to change my mind this evening.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Your thoughts on the Atkins case are tremendously insightful. But I disagree with the proposition that the court's efforts at curbing congressional overreaching (often to give powers back to the states) are at all analogous to what the Court did in Atkins—curbing a state's power to decide who is to be executed at all.

I also disagree that the court was, per se, ill-suited to make the call in Atkins. Yes, where the sole legal issue facing the courts is whether a consensus exists as to X, the legislative branch would seem to be uniquely and exclusively qualified to answer. But I wonder if the real issue in Atkins is not "Is there a consensus?" but rather "How the hell do you measure consensus?" That is a far trickier question and, unless you believe—as Scalia evidently does—that consensus means 100 percent of the population must agree on X in perpetuity, then there is a fundamental question for the court to determine: Is a consensus 60 percent of the states or 80 percent? Must it be constant over time?  Can evidence of trends toward a consensus reflect a consensus? Yes, I agree Justice Stevens fudged those answers, but I'm not certain how a legislature could have answered this "meta" question either.

Briefly, on Ring: In Ring v. Arizona the court held today, 7-2, that juries, and not judges, must impose the death penalty under the Sixth Amendment. Justice Ginsburg's opinion argues, in effect, that if juries are competent enough to do the fact finding required for a conviction, they are also competent enough to be entrusted to decide who will be put to death. Interestingly, this argument cuts against the very "death is different" jurisprudence that lay at the heart of the Atkins decision last week.

Justice Scalia's dissent in Atkins was a heartfelt cry that death is not different. He believes if you can sentence someone who is mentally retarded to jail, you can kill them. You and I disagree with him, but why? Scalia forces us to articulate why we think death-penalty cases demand more legal vigilance and care. My answer has always been that death is irreversible. But there must be a better answer than that.

More later,


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