SCOTUS annexes the legislative branch of government.

Great Debates
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Bush hides underground with Cheney’s secret reserve government as Chief Justice Rehnquist warns Bush “You’re next.”

Is anyone else besides me uneasy about the recent Supreme Court ruling that bars executions of the mentally handicapped?

What gives SCOTUS the right to determine this? The judicial branch’s purpose is to interpret the Constitution and “judge” whether the acts of the other two federal branches or any state government is in violation of the Constitution and its amendments, not to dictate to the nation its own political agenda.

Don’t get me wrong. I don’t think the mentally handicapped should be executed, but for that matter, I don’t think anyone else should either(and I will not turn this into a debate over the death penalty itself).

Besides in 1989, SCOTUS ruled that executing mentally handicapped prisoners was not in violation of the 8th amendment which protects against cruel and unusual punishment. So why the change?

Simple. The polls show that a greater percentage of people today are against capital punishment of retarded persons than there were 13 years ago.

The polls?

Yep. SCOTUS has now decided to use polls in determining whether something is unconstitutional or not.

Congress uses polls to get an idea of what voters want, so that it can make laws that are for the most part supported by the voters. Presidents use polls for much the same reasons. Both congress and the president are elected offices, so they should answer to the people.

But SCOTUS? These people are appointed! They hold probably the most prestigious position in goverment second only to the president. They are supposed to uphold the intent of the constitution as they see it, not change their mind at will because the populace’s opinion of something has changed. Congress and the Executive branch have to be flexible in practice, SCOTUS on the other hand does not have to and should not be. Nowhere in the constitution is there any mention of retarded persons. SCOTUS is giving special priveleges to a certain group of people arbitrarily, something that violates the constitution’s whole purpose of making sure that we are all treated equal under law and subject to the same protections of rights. Making policy is something that is left for the Executive and Legislative branches. They are the ones that should determine whether or not certain groups should be afforded more protections than others. If their actions violate the spirit of the constitution, then and only then should SCOTUS get involved.

Now, SCOTUS could in theory declare the death penalty itself unconstitutional under an interpretation of the 8th amendment. That would be a valid interpretation. And because the judges due change over time, it’s quite possible that its views will come to support this contention. There is nothing wrong with this because it is determining how captial punishment itself fits into the intentions of the Bill of Rights (and all the authors of that are long dead, so there not here to ask about it). However, applying a protection under the Bill of Rights to only a narrow percentage of the populace smacks of some twisted sort of elitism. It’s legislation without the debate or veto.

Sure I think punishment of mentally handicapped persons is not an issue to be taken lightly. I think they should be given extra protections under law, just like minors do. But last time I checked, there wasn’t any amendment in the constitution that gave extra protection to minors either.

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Article III and the 8th Amendment.

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I think the OP is complaining about the SC’s method rather than its source of power per se. Court decision making is supposed to be based on precedent and/or rigorous unsentimental logic, not polling or coin-flipping or voo-doo. Sure, there’s nothing in the Constitution that expressly prohibits the SC from basing its decisions upon reading goat entrails, but that doesn’t mean its appropriate.

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Is there any way to define “unusual” without reference to contemporary thought and practice? If not, why the heck would you complain about the Court doing so?

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Read almost any opinion on the issue of “cruel and unusual punishment” and you’ll find that the Court looks closely at “general consensus” to determine if a punishment is “cruel” or “unusual”. Even Scalia admits that, for example, the C&UP clause now prohibits “cadena temporal”, or hard labor (punishment in which the prisoner is deliberately worked to death over a period of months or years), even though it probably did not when the 8th Amendment was adopted.

A significant part of the Supreme Court’s role is to protect those who the legislature will not (c.f. “Footnote Four”). You can argue over whether this is right or not, but it’s been the way of the Court for 70 years. Perhaps if our legislatures actually represented the people, and not merely money, there’d be less need for this.

Congress uses polls not to find out what the people want, but rather to find out what they can get away with without losing electoral support. They don’t really care what the people want. If they did, this would be a nonissue.

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Why is the death penalty so “unusual” for a mentally handicapped person, but not “unusual” for your typical person?

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Article III. Well, I’ve looked through Article III, I really don’t see any mention of giving SCOTUS the power to dictate public policy. Maybe if you could help me out by quoting the relevant passage.

The closest thing I could find was the following:

So they can interpret the law. I never disputed that. My point is, where do they get the power to give preferential treatement to one group over another?

KellyM raises an interesting point. Maybe SCOTUS wouldn’t have to do this if Congress actually tried to represent the people equally rather than pandering to whoever is lining its pockets at the time.

But, do two wrongs make a right? Should we allow the court to usurp legislative power because our legislative branch is filled with idiots more concerned about where there next paycheck comes from rather than actually doing their job? If this is the case, why even have a legislative branch in the first place?

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Article III and the 8th Amendment. Specifically, the Court interpreted the prohibition on cruel and unusual punishment to prohibit the execution of criminals who are mentally retarded. What’s so difficult to comprehend about that? The 8th Amendment is, after all, indisputably a limitation on the legialtive branch’s power to establish criminal sanctions.

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Fine. Then answer my other question. Why is it “cruel and unusual” to execute a mentally handicapped person, but not “cruel and unusual” to execute someone else? Did the court explain why? Or are they just using the “We’re the Supreme Court so we really don’t have to explain why, and there’s nothing you can do about it since we clearly haven’t committed any impeachable offense here?”

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Huh?

  1. SCOTUS did not annex Congress with this decision, or usurp its authority. At issue here was a state death penalty statute, which Congress has no control over whatsoever.

  2. Hoopy, your assertion that

contradicts this statement

Unless the definition of what is “cruel and unusual” evolves over time, the Supremes could never “validly” intepret the 8th Amendment to bar capital punishment, because the people who wrote that Amendment and ratified it practiced capital punishment.
So it’s one or the other. “Cruel and unusual” means what it meant in the 18th Century, or it means what it means today. It can’t be both.

  1. Next, the decision was not based on opinion polls. Instead the dispositive evidence was that state legislatures were passing laws barring the execution of the mentally retarded. You may indeed argue, that this evidence was insufficient, but you can’t argue that this was the evidence relied up.

Rehnquist went on about polls ad nauseum in his dissent, but the majority opinion itself only mentioned polls in a foot note, and explicitly stated that such polls “are by no means dispositive” but instead that “their consistency with the legislative evidence lends further support to our conclusion.”
If the polls didn’t exist, the outcome of this case would have been the same.
Here’s the decision, by the way.

  1. Finally, PatrickM, the decision was supported and indeed arguably mandated by precedent. As was stated by the Supremes 44 years ago,

And that decision was based on a 1910 Supreme Court case, which held that

So it has been Supreme Court precedent for at least 92 years that the definition of “cruel and unusual punishment” changes as the American society changes.

  1. To sum up, an argument exists as to whether the evidence relied upon by the Supremes actually said what the Supremes claim it said - that modern American society considers execution of the mentally retarded to be cruel and unusual punishment - but there is no legitimate argument, in the face of 92 years of consistent precedent, that consideration of the modern meaning of “cruel and unusual” is the standard the Supremes must apply.

Sua

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Thank you Sua for the well organized and thought out response.

I understand the situation much better now. It makes sense in the light of your arguments.

I guess I didn’t quite understand the whole situation accurately.

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Cite? Please?

You ever work in a Congressional office? Do you know lots of Congresspeople personally? Have you had in-depth discussions with them of what they care about? Sorry, but most care deeply about their constituency and want to do what’s in their best interest and make them happy. That’s why most Congresspeople (well, representatives anyways…senators are different) are elected by a fairly substantial majority each time. It’s bizarre, but you know…sometimes, what a corporation wants may actually be in the best interests of that congressman’s constituency :eek:

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Thanks for the kind words, Hoopy. Especially as I was re-reading the damn thing and wishing I had used preview before submitting it. I’m missing a few words and connectors there, but I’m glad you understood my gist.

Sua

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Thanks for the kind words, Hoopy. Especially as I was re-reading the damn thing and wishing I had used preview before submitting it. I’m missing a few words and connectors there, but I’m glad you understood my gist.

Sua

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As far as the SCOTUS annexing the legislative branch of the Federal government:

They already did that in 1803, in Marbury v. Madison.

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Thanks for the kind words, Hoopy. Especially as I was re-reading the damn thing and wishing I had used preview before submitting it. I’m missing a few words and connectors there, but I’m glad you understood my gist.

Sua

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The problem I have with the decision is that many state statutes give an IQ of 70 or less as the cut-off for “mental retardation.” I have several problems with this. One, IQ scores are only accurate to plus or minus five. The same individual can get an IQ of 70 one day, but 71 another day. So, he’d be mentally retarded one day, but not the next.

The other problem is closely related to my first problem. An IQ of 70 is called “mental retardation,” but an IQ of 71 is called “borderline intelligence.” I dare say that most people with an IQ of 70 are gainfully employed and are as gifted mentally as those with IQs above 70. Some of them even post on this Board. :slight_smile:

It is true that SCOTUS stated

Nonetheless, I believe that a person must be profoundly mentally retarded in order to be exempt from execution. It is only those who are more than mildly mentally retarded (IQ of 50 or less) who really cannot be put to death since those persons have no more control over their behavior than a little child. Once an individual approaches an IQ of 60, IMHO he or she certainly has some control and will power. The state statutes state an IQ of 70 or less is mental retardation. So does DSM-4, with the proviso of maladaptive behaviors. But is that really the consensus of modern society? DSM-4 gives varying degrees of mental retardation.

DSM continues that Moderate Mental Retardation (IQ 35-50) is what used to be called “trainable.” IQs below that are referred to as Severe Mental Retardation and Profund Mental Retardation.

The point I’m trying to make is that a person with a high Mild Mental Retaration (60+) should not be put in the same position as someone with a more severe mental retardation. I don’t believe that current mores say that these people should not be treated the same as those with higher IQs. I know the statutes are * contra *. As I said before, someone can test at an IQ of 70 one day, but at 71 another day. Why should someone with an IQ of 71 be put to death for a murder while someone with an IQ of 70 cannot (under similar circumstances)? Especially when those scores are valid only plus or minus five.

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Barbitu8
There are a few points here. First, the issue of borderlines really isn’t an issue. The determination of whether a person is mentally retarded when they are testing in the high 60s to low 70s range has long been made, for purposes of eligibility for Social Security Disabiility, special ed programs, assisted living and the like. It’s always a judgment call, but there is practically a whole industry of people out there skilled in making that judgment.
Second, your belief that only those profoundly mentally retarded should be exempt from the death penalty is an exception that swallows the rule. Persons with an IQ under 50 are already exempt from execution - hell, they can’t even be convicted. They are incapable of forming the requisite mens rea to commit an illegal act, much less capable to fully understanding the consequences of their actions. If, say, my old counselee Tim (a pretty big 30 y.o guy with an I.Q. of 47, and a bit of a temper) had pushed me down the stairs, he never would have faced trial, much less been convicted of premeditated 1st degree murder.
Third, you post misapprehends the concept behind the decision. What is deemed cruel and unusual has nothing to do with whether the convict “certainly has some control and will power” or not. Instead, it is wholly about what society deems to be appropriate or inappropriate punishment. The factual circumstances of the convict are irrelevant - hell, the societal judgment need not be rational. If there was a consensus in society that it would be cruel and unusual to put to death owners of cute widdle puppies, then owners of cute widdle puppies should not be put to death under the 8th Amendment.

Sua

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I believe the state statutes refer to an IQ of 70. I realize the concept and rationale of SCOTUS’s decision, but I also believe that society does not deem it cruel and unusual punishment to execute an individual with an IQ of around 70. Certainly an individual who is profoundly Mentally Retarded cannot even be convicted. If I said “profoundly,” I was mistaken. However, there is a certain area within the mildly Mentally Retarded (50-70) wherein society would condemn execution, but it is not around 70. I mentioned 60 as a cut-off.