The Supreme Court’s 5-4 opinion in Hall v. Florida contained those words I long to see: Alito, J., dissenting. There is no better assurance that the right decision was reached. The case involved Florida’s rule establishing an absolute cutoff for execution under Atkins v. Virginia of IQ of 70 or below.
While Atkins held it unconstitutional to execute a mentally retarded person, it neglected to define the phrase. Florida fixed it at a specific number, refusing to consider the margin of error, because the words “standard deviation” mean something different to lawyers. Justice Kennedy, writing for the majority:
Florida’s rule disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence. It also relies on a purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise….
It is the Court’s duty to interpret the Constitution, but it need not do so in isolation. The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community’s diagnostic framework. Atkins itself points to the diagnostic criteria employed by psychiatric professionals. And the professional community’s teachings are of particular help in this case, where no alternative definition of intellectual disability is presented and where this Court and the States have placed substantial reliance on the expertise of the medical profession….
This explanation opened the door to Justice Alito’s dissent, which raised a very interesting question:
The Court’s approach in this case marks a new and most unwise turn in our Eighth Amendment case law. In Atkins and other cases, the Court held that the prohibition of cruel and unusual punishment embodies the “evolving standards of decency that mark the progress of a maturingsociety,” and the Court explained that “those evolving standards should be informed by objective factors to the maximum possible extent.”
In these prior cases, when the Court referred to the evolving standards of a maturing “society,” the Court meant the standards of American society as a whole. Now, however, the Court strikes down a state law based on the evolving standards of professional societies, most notably the American Psychiatric Association (APA).
See the problem? On the one side, the majority appears to defer its judgment under the Eighth Amendment to a professional group, the deference problem that appeared from oral argument in this case. On the other side, the dissent appears to suggest that it can hop into the driver’s seat of a spaceship created by scientists and engineers and fly it to the moon without reading the instructions. After all, they’re tasked with being the pilot.
The dissent has a point, that the APA is not a proxy for society or the Court in determining who should be executed. What of competing groups? What if the APA changes its definitions? What if they decide to redefine IQ as one’s feelings about one’s intelligence? This isn’t nearly as far-fetched as it sounds with the APA.
By relying on the APA’s statistical definitions using medically accepted tests, has the Supreme Court not abdicated its responsibility to society by shifting the burden elsewhere?
The problem stems from the majority’s rationale, which sought to adopt the medically-accepted definitions, not because of an abdication of duty but because it was medically and statistically sound. While this is true, it exposes a soft underbelly to Justice Alito. Sam can’t resist a soft underbelly.
But taking Justice Alito’s point further, the merit of the majority’s ruling becomes clear:
Today, the Court overrules the latter holding based largely on the positions adopted by private professional associations. In taking this step, the Court sharply departs from the framework prescribed in prior Eighth Amendment cases and adopts a uniform national rule that is both conceptually unsound and likely to result in confusion.
In addition, the Court “pinpointed that the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.”
The case addressed a rule created by the Florida legislature, that an IQ of 70 was the cut off. No wiggles, standard dev aside. Above 70, you fry, end of discussion. As Alito says, “the legislation enacted by country’s legislatures” is the “most reliable objective evidence of contemporary values.” Fair enough.
It was thus the choice of the Florida legislature to eschew an Atkins definition that was grounded in something other than an IQ test. It’s not that I have the slightest clue what a better, or even marginally reasonable, definition might be, as the entire concept of intellectual disability is a medical, not legal, one. Sometimes, the rhetoric fails us. Bummer.
But Florida picked the IQ test as its measure, thus making it the “most reliability objective evidence of contemporary values.” The majority of the Supreme Court didn’t do that. Florida did. So if Sam has a problem with it, blame Florida. Heck, everyone else does.
But having selected a definition based upon a medically-defined measure, the Florida legislature can’t cherry pick the measure and ignore the rest of the science related to it. While “society” may have embraced the words “intelligence quotient” within its lexicon of vagaries, it carries meaning within the scheme of determining average intelligence. The Florida lege can’t have it both ways.
Frankly, I’m no more comfortable than Justice Alito in leaving a determination of life and death in the hands of a bunch of psychiatrists. They’re nuts. And more importantly, they’re authoritative nuts, meaning that it’s pretty darned hard to argue with an objective test, even if we take the standard deviation into account (and do so properly, Sam).
And yet, what alternative did the majority have? Florida picked its line in the sand, and that’s the law before the Supremes. There is no meaning, no validity, no utility, to using the IQ of 70 without the margin of error. The number 70 may appear pretty darned easy to apply to grocery clerks, but then what Florida was really doing was taking the APA’s medically-based decision-making authority and handing it over to the grocery clerks to decide. And they stamped their feet, yelling, “70, 70, 70,” because numbers are easy even if the 70 meant nothing without its context.
The majority gave Florida what it wanted, a way to use its law, its IQ of 70, with the proviso that it do so using the whole of the concept rather than only that piece that grocery clerks find easy to apply. Really, Alito still kinda won the case, even if he is the author of the dissent. But then, it’s just so nice to see “Alito, J., dissenting.”