The Supreme Court plays the numbers game.

The Supreme Court plays the numbers game.

The Supreme Court plays the numbers game.

Oral argument from the court.
Feb. 20 2002 7:24 PM

Ahead by a Nose

The Supreme Court plays the numbers game.

This morning, the Supreme Court heard two of the most important cases of the 2001-2002 term: Zelman v. Simmons-Harris, testing the constitutionality of the Ohio school vouchers program, and Atkins v. Virginia, testing the constitutionality of executing the mentally retarded. Both cases came down to counting noses, which is something courts are astonishingly ill-equipped to do.

Zelman may well be the biggest case of the term. Not only will it affect education policy in the many states contemplating vouchers, but it will also signal the court's openness to President Bush's proposed faith-based charities policy. The case involves an Ohio scholarship program enacted in the wake of the spectacular failure of the Cleveland public school system—a system taken over by the state as a result of a federal court order. The program targets primarily poor children in Grades K through 8, and it allows kids to opt out of the public school system. The kids can: 1) opt into private schools (parochial or not); 2) opt into "community" or charter schools; 3) opt into suburban public schools (except for the fact that all those schools politely declined to participate in the program); or 4) the kids could remain in public school and receive a $500 tutorial grant.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.


For whatever reason, fully 99 percent of the Cleveland vouchers ended up being used for private religious schools, so the 6th Circuit Court of Appeals struck down the program as a violation of the First Amendment's ban on government "establishing" of religion. Now you and I have talked about religion before, and I've tried to help make sense of the crabbed and demented mess that is the Supreme Court's Establishment Clause jurisprudence. Perhaps we'll leave it at this: Many of the nine justices have such different and irreconcilable tests for government violations of the Establishment Clause that the past 20 years have amounted to little more than an elaborate swapping of constitutional baseball cards. Justice Kennedy favors testing to see whether there's been religious coercion, but he'll throw his weight in with Thomas to hold that if state aid is neutrally allocated, it can still be constitutional. Justice O'Connor rejects the neutrally allocated test and instead has cooked up a test that would make aid constitutional as long as students' choices were freely made. But she also frets about the appearance of government endorsement and the feelings of objective observers who might be excluded from the religion being funded. Justice Breyer seems to have signed off on some version of O'Connor's test. And still the bones of Lemon v. Kurtzman—the sucky 1973 case laying out the original foundation for these various tests—rattle around to confound meaningful discussion.

Since today's result (and the constitutionality of every future voucher program in America) hinges primarily on O'Connor's vote, it's O'Connor whose issues predominate this morning. And O'Connor wants to count noses. So, an inordinate amount of time is devoted to questions such as whether the charter schools and magnet schools offered in Cleveland count as "public" or "private" schools. O'Connor thinks the lower court made a mistake in not counting the "community" schools among the options available to Cleveland's voucher kids. Even though almost all the voucher kids have elected to attend religious schools anyhow, for O'Connor there might be sufficient secular choices to immunize the program if the community schools are counted as at least a theoretical option. No less than six times, O'Connor asks Robert Chanin, who opposes vouchers, why community schools are not counted as private schools.Chanin's response (accompanied by lots of pointing and emoting) appears to be that they aren't counted as private schools because they are public. O'Connor is unpersuaded. And O'Connor is about to invent a new Establishment Clause test called the "lots of other choices" test.

Of course, even if you count all the kids who go to charter, magnet, and mime schools in Cleveland, you still have the problem that almost 100 percent of these kids go to religious schools. But this case, as is evidenced by bus-loads of orange-hatted Cleveland school kids who arrived to protest outside, has become about virtuous things like "parental choice" and about "not persecuting the church schools by denying them equal funding for the good work they do." My constitutional law professor Kathleen Sullivan once wrote in this very publication: "[T]he establishment clause is not a civil rights act for religion." But it's sure starting to look like one.

The second case, Atkins, involves a death row convict who killed a man for beer money. The convict's IQ (his attorneys say it's 59) is well below 70, the score that usually denotes mental retardation. At the trial court, the mental health expert who testified on Daryl Renard Atkins' behalf characterized him as retarded, but the prosecution expert felt he was simply lacking in ambition and "not motivated to succeed." One might have hoped that hundreds of years of medical science could do something to bridge that empirical chasm but, alas, apparently not.


The legal test for whether executing the mentally retarded violates the Eighth Amendment ban on cruel and unusual punishment is nothing more than an elaborate squish test. Unlike most constitutional jurisprudence, the test makes allowances for "evolving standards of decency." In fact, the high court probably took this case only because when it last tackled this issue, in the 1989 case of Penry v. Lynaugh, the high court refused (by a 5-4 vote) to outlaw the death penalty in these cases precisely because "a national consensus against executing mentally retarded people" did not yet exist. The only issue before the court today is, does that consensus exist now?

Since Penry was decided in 1989, 16 states have passed legislation outlawing capital punishment for the mentally retarded. Add to that the two states who outlawed it before Penry and you now have 18 states (Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Kentucky, Maryland, Missouri, Nebraska, New Mexico, New York, North Carolina, South Dakota, Tennessee, Washington) that outlaw executing the mentally retarded. (New York still allows execution of mentally retarded prisoners who kill while incarcerated, however.) 

The mathletes on the high court bicker about whether one can add in the 12 states that outlaw capital punishment altogether. O'Connor, again the swing vote, feels that it's intuitively obvious that states who oppose executing people also oppose executing the retarded. Still, Virginia Assistant Attorney General Pamela Rumpz makes an impassioned argument for those states' right to change their minds. Indeed, she makes an impassioned argument for executing even 5-year-old murderers, so long as they are capable of deliberation and premeditation and of assisting their counsel. Indeed, Rumpz offers the most passionate defense of a jury's right to erroneously convict and execute a retarded person that I have ever heard.

The performance from Atkins' attorney, James Ellis, is oddly dispassionate—despite the fact that Souter and Ginsberg lob him softballs to tug at our heartstrings. He refuses to "count noses," asserting that a consensus exists because most folks agree that it's morally wrong to execute the retarded. I'm not sure what facts he bases that on. But he probably has the majority of the court behind him.

The final nose count? My money's on 5-4 for vouchers and 5-4 against executing Mr. Atkins and 5-4 on a lot of other stuff for a long, long time.