Interesting. Not entirely unexpected -- although the 6-3 split was better than I'd expected -- but still, interesting.
Scalia is quite right, of course; both currently sentenced and future prisoners will now try to convince courts that they're mentally retarded, and states will need to set or accept some sort of standard to work with it. There is likely to be a (relatively brief) clog in the court system as people suddenly file all sorts of additional appeals (most of which will be rejected either because appeals have been exhausted or because they're filed out of time; the merits of the allegations will be largely irrelevant to the disposition of the cases). Of course, that does bring up the question of whether or not the court's administrative convenience should take precedence over the attempted execution of someone who may not be competent to understand what they've done or the penalty they'll be paying. (And apparently our Chief Justice has the judicial version of a snit fit by omitting the traditional word "respectfully" before the word "dissent". How very mature. The Court must be ever so pleasant a place to work both when things like that matter, and you use that sort of traditional courtesy to slap your coworkers in the face.)
There is a certain concern about the Court using public opinion, of all things, as a barometer for correct judicial decisionmaking. After all, if public opinion were the issue, all of the early civil rights decisions would have gone the other way. To be sure, I don't argue with the result, as such -- although, frankly, I think executing retarded inmates is slightly more humane than allowing them to live the rest of their lives in a maximum security prison (slightly). I am somewhat concerned about how the justices reached that result. Is "cruel and unusual" always to be measured against public opinion? I suppose it's embedded in the concept, but ... is there no absolute?
And in other news, my current HMO lost its battle against the state of Illinois at the Supreme Court. At the moment, at least, I couldn't be happier. It will be interesting to see if HMOs abide by the national standard for independent reviews, should one ever come to be -- I rather think that they're unalterably opposed to independent review (understandable, actually, from a pure business independence viewpoint) -- but think that a national standard would be considerably watered down from the admitted hodgepodge of state standards. (HMOs pay Congress more, you see ... er, that is, they make larger campaign contributions, and may therefore expect more results from their lobbying efforts ... oh, dear. There's just no good way to look at that, is there? But I digress.)
That said, I wonder how far it's possible to expand this decision? Perhaps get HMOs to look at their decisions for including medication in their various formularies. (Currently, Unicare -- Rush Prudential's new name -- only covers a very limited spectrum of prescription drugs. If your particular prescription isn't on their list, you pay a premium to get it, or have to shift to a covered drug. I'm guessing that Unicare tried to shake down ... er, that is, tried to get better deals for drugs from some manufacturers, and when they succeeded, allowed the lowest copayment, and when they didn't, charge as much as they think they can get away with. Interestingly, visiting their website, I discover that my office visit copay just tripled. Entirely without notice, too. Nice of them.)Posted by iain at June 20, 2002 10:52 AM
I think executing anyone is always cruel and unusual. And anyway, you never know what you lose by executing someone. You might regret it later...Posted by Maarten Schenk at June 21, 2002 04:20 AM