Scalia Makes My Face Hurt
An email conversation about the news of the day.
June 20 2002 7:18 PM


Dear Walter,


First off, congratulations on your impressive victory in Utah v. Evans, the Census case! You must be thrilled to have helped North Carolina score a congressional seat from Utah. To me, the most striking aspect of this case is that tiny fractions of a single percentage point of the population can so radically alter the apportionment of congressional seats. That'll teach Utahans to stay home next time the Census people come 'round.

Dahlia Lithwick Dahlia Lithwick

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

I know you're swamped today but I've been obsessively rereading the opinion in Atkins v. Virginia—prohibiting the execution of the mentally retarded as cruel and unusual punishment. Like everyone else, I've been struck by the scorching dissents. Justice Scalia read his from the bench and his disgust with the majority reasoning made my face hurt. My, but he does have a way of making his arguments seem flawless and dispassionate, even when—as is the case here—he's completely and thoroughly pissed off. Scalia's greatest gift as a jurist is his ability to almost persuade anyone who differs with him on any issue, that it's merely due to the fact they are colossal and irredeemable morons.

Justice Stevens' majority opinion gets the job done, but barely. As Chief Justice Rehnquist points out in his dissent, there is far too much chatter in the system about how this and that group feel about executing the mentally retarded. Both Rehnquist and Scalia point out that arguments about how the rest of the world condemn us as barbaric are constitutionally immaterial. To quote Scalia's dissent:

But the Prize for the Court's Most Feeble Effort to fabricate "national consensus" must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called "world community," and respondents to opinion polls. … I agree with the Chief Justice … that the views of professional and religious organizations and the results of opinion polls are irrelevant. Equally irrelevant are the practices of the "world community," whose notions of justice are (thankfully) not always those of our people.

It's just not a good day at the office unless you get a slam in on that world community …

The reason Stevens gets it right has nothing to do with world consensus though. Eighth Amendment jurisprudence allows the court to take "evolving standards of decency" into account, and, yes, it also allows the judgment of the court to factor into that calculus. At its heart, the dissent plays the same stupid math tricks they played at oral argument. They try to say that only 18 states oppose executing the mentally retarded by totally ignoring those 12 states that ban capital punishment altogether. Scalia factors those 12 states out of his calculations—suggesting that they're somehow agnostic as to this issue. The trick implicit is transparent: Scalia wants us to assume those 12 states have no ethical problem executing the mentally retarded, despite the fact that they're unwilling to execute anyone. This is disingenuous to the point of being laughable.

But underpinning much of Justice Scalia's furious dissent is his objection to ever taking evolving standards of anything into account for constitutional purposes. Suggesting that human standards of decency are so fluid as to be without meaning, he cites to the almost 120-year progression in this country (starting in 1846) toward banning capital punishment altogether; a trend which has reversed itself in the recent past. To Scalia this reveals "the peril of riding a trend, but also the peril of discerning a consensus where there is none." Of course, applying his logic, there can never be a national consensus about anything, since even 120 years of evolving values, might always jog back to the morality of the framers. Who knows? We may still find a place in our hearts for reinstating public floggings outside the Super Kmart.

Professor Richard Garnett just wrote a thoughtful piece in the National Review suggesting the court's real sin in Atkins was arrogating legislative power to itself, instead of allowing the states to decide this issue. Which sounds nice, but suggests that the interpretation of the Eighth Amendment is to be decided solely by majority rules. Did I miss that day of Con. Law?

I look forward to more "off-the-top-of-your-head Internet writing" on Monday. Not to worry, I don't think it precludes anyone from being on any high court short-list. I think you need to appear on Celebrity Boxing before that happens.



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