Atkins v. Virginia

Executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment.

This was a 6-3 opinion and the focus of this discussion is to reply to the dissents.   Rehnquist wrote separately to "to call attention to the defects in the Court's decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion."  He grants that there was some reference to this in past precedents but wants to rely on legislatures and sentencing practices alone in determining the reach of contemporary standards of decency.  Given his druthers, Scalia (who joined Rehnquist's dissent) probably would toss the rule totally and only disallow punishments deemed cruel and unusual back in 1791 though admitted maybe not something like flogging. This actually was still around in the 1960s in prisons and corporal punishment in school has yet to be deemed unconstitutional. 

Anyways,  the majority didn't just invent the criteria. It, e.g., cited opinions by Justice White, from from some liberal.  Also, as seen by reference in a footnote, it is something of a toss in.  "Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue."  Reference to international experience was cited at least as far back to Trop v. Dulles in the 1950s.  There is a long history (including by Rehnquist) involved here and it is reasonable if open to some concerns (what method isn't?) to use international practice to help determine the question.  "Foreign" law is repeatedly cited in state courts as informative (such as practice in other states) as is academic writings etc.

The use of some things as a sort of "plus" (matching foreign jurisdictions that cite our law) is of little note except for those who exaggerate its importance or suggest some sort of feeling of insult ("our law!").   Justice Scalia in his own dissent basically rejected various long held precedents, again precedents that both liberal and conservative leaning judges accepted (proportionality review was supported by Powell and White).  The dissent begins with the usual "making shit up" allegations:

Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.

The opinions Scalia doesn't like, even the majority in this very case, repeatedly cited text and history, showing perhaps the protean nature of such things, but if he wants to cite it, he can be hung by his own petard.  The majority also provides support in current social attitudes.  It is yet again just a matter of great dispute with competing visions.  This isn't enough -- there has to be allegedly a basic lack of good faith.

Scalia's dissent as is often the case begins by noting the heinous nature of the crime but the majority summarized that too.  It then notes that there was much focus on his alleged mental retardation but it was deemed not mitigating enough to avoid the death penalty.  Even after the case was sent back, he was found not mental retarded enough though prosecution misconduct charges led to commutation to life in prison.  But, as with other things (such as insanity or denial of certain due process rights) the opinion determined a blanket rule was required.  One can debate the specifics as applied; nonetheless, the general principle is mundane.

It is unclear what "before today" rules were in place -- basically, there seems to be a dispute over some of the rules (e.g., what to use to determine the question) and there was some evidence of that in past opinions.  The reliance of the justices' own judgment is seen as outrageous egotism, but that is standard too.  Judicial review involves judges applying a range of things and is not just reliance on legislative practice or whatnot.  If basic due process rules are violated, they are violated.  Again, suggesting the likes of Justice White are lax on crime is hard to take seriously here.  Finally, Scalia (with Thomas here) appealing to judicial modesty is hard to take seriously.  He whines a lot though.

A basic concern here was that the mental retarded were not culpable enough to warrant the death penalty. This doesn't mean they lacked merit of serious punishment.  But, for quite some time death was put to a higher test.  We can debate the logic of an absolute rule here as compared to flagging it to the judge and juries as a matter to be carefully concerned about.  This is a matter of degree.  One way used to determine how "unusual" a practice is would be by looking at current experience. This results in debate over just how much is enough and some dispute on how to split the numbers. And, how new the "consensus" might be. This all is perhaps the weakest strand at times in these opinions.

The opinion was written in 2002. "The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986."  I'm against the death penalty, including as a constitutional matter.  But, that is rather new. Compare, e.g,. the lagging experience of death penalty for rape in the 1970s.  Also, there is fear that this is a "one way ratchet," but as Rehnquist noted in the oral argument, even if the Supreme Court decides to declare it unconstitutional, a state can later on pass a law and argue that now current trends warrant a return. The principle should and need not be one way.

After making an argument for consensus, the majority cites "some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards."  At one point, Scalia in answer to this discussion notes: "But surely the deterrent effect of a penalty is adequately vindicated if it successfully deters many, but not all, of the target class."  The telling "surely" to make the open to dispute allegedly obvious.  As with the so-called "flabby" nature of "special risk" (a perfectly standard term), again, this is a judgment call.

Basically, it is just one of a myriad of times when judges have to determine if due process is present, something that will be open to dispute.  Or, we can assume bad faith.