The now well-known case of Atkins v. Virginia decided that the execution of those with mental retardation constituted cruel and unusual punishment under the Eighth Amendment. The more recent case of Roper v. Simmons decided that execution of those who were under the age of eighteen when they committed their crimes also constituted cruel and unusual punishment. Both decisions changed the law that had existed since 1989, when the Court held in Penry v. Lynaugh and Stanford v. Kentucky that executions of members of both classes were not unconstitutional. Writing for the Court in Atkins v. Virginia, Justice Stevens was joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer. That the majority opinion commanded the support of six justices and not the narrower five, as is often the case of late on the Rehnquist Court, was somewhat unexpected but not wholly surprising. The clear national trend and dialogue had tended toward expressing some discomfort with executing people with mental retardation. More and more legislatures were deciding to ban the execution of people with mental retardation and governors were signing the bills into law. At the same time, more people were questioning the use of capital punishment at all, since so many death row inmates had been exonerated either by DNA or other evidence. The Court in Roper v. Simmons surprised again, in an opinion authored by Justice Kennedy and joined by Justices Stevens, Souter, Ginsburg, and Breyer. The five-to-four decision in Roper employed the same Eighth Amendment tests as in Atkins and probably created as much of a stir as that case did. Of the recent decisions though, Atkins provides the best opportunity to revisit the Court’s Eighth Amendment cruel and unusual punishment jurisprudence. It reversed the trend in those cases involving the categorical exemption of classes of offenders from eligibility for the death penalty. I have previously argued that the Court’s “evolving standard of decency” test, the primary portion of the standard for judging the cruel and unusual nature of a punishment, is pro-death and self-fulfilling. For that reason, the Court should not use it as the sole determinant of what is cruel and unusual in the death penalty context. Rather, I have argued that the Court must continue to bring its own judgment to bear on the question, above and beyond what is shown by the evolving standard. But some justices, most notably Justice Scalia, argue that such an approach injects the justices’ personal preferences where they do not belong, into the constitutional determination. A careful review of Atkins shows that Justice Scalia may be right, and that is part of the thesis of this Article. The majority opinion in Atkins and some of the majority justices’ prior opinions arguably betray the injection of some personal views into the constitutional analysis. So perhaps Justice Scalia has a point after all. But Justice Scalia has a long paper trail of very strongly-worded opinions in this area of the law, and he wrote a stinging dissent in Atkins. Careful analysis of that dissent and portions of his other opinions allows one to charge justifiably that Justice Scalia is letting his personal predilections get the better of his constitutional reasoning as well. If both of these lines of analysis are accurate and supportable—that both sides of the debate are injecting their views into the constitutional assessment of the death penalty—the next question becomes which of the two approaches should prevail. The answer to that question should ultimately depend on ideas about democratic values and the Court’s role in constitutional adjudication.

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