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"Shouldn't We, the People, Be Heard More Often by This High Court?"--A Commentary by Prof. Akhil Amar

(This essay was originally published in the Sunday, June 30, 2002, edition of the Washington Post.)

By Akhil Reed Amar, Southmayd Professor of Law
Shouldn't We, the People, Be Heard More Often by This High Court?

Among the several landmark decisions handed down by the Supreme Court as its latest term was drawing to a close, there's one whose enduring significance may well lie not in what the justices did, but in how they did it.

In its June 20 decision in Atkins v. Virginia, which banned the capital punishment of mentally retarded convicts, the justices explicitly relied on broad popular opinion outside the court to determine a question of constitutional law. The ruling came as a welcome shift. Under Chief Justice William Rehnquist, the court has generally not been known for its humility or its deference to the opinions of others. But it is worth remembering that the Constitution itself begins with the words "We the People," not "We the Court."

There have been other recent cases involving the Eighth Amendment, which bans "cruel and unusual punishments," in which the court has consulted public views and practices as it considered what counts as "unusual." But in the Atkins decision, the court, by a 6 to 3 vote, took this idea two steps further. Citing public opinion polls and recent votes in state legislatures, the justices discerned "a national consensus" to prohibit the execution of low-IQ convicts. This persuaded the court to overturn a 1989 decision in which it had upheld such executions.

The landscape has changed considerably since '89, the court noted. Back then, 16 states prohibited the death penalty in such cases; today, that number is 30. Indeed, since '89, only five states have executed convicts known to be mentally retarded. The court also cited "polling data" showing "a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong."

So what does any of this have to do with constitutional law? Doesn't the court's decision to overrule precedent on the basis of opinion polls and current trends in state practice mock the idea of enduring principles of constitutional law immune from gusts of public opinion and passing legal fads?

Well, no. The majority's straight- forward argument was that executing the mentally retarded had indeed "become truly unusual" in America today. In effect, the Eighth Amendment was written with a built-in escalator clause. Over time, harsh punishments that were once common have become less common as society has turned against them; and when these punishments become truly unusual, they thereby become ripe for constitutional invalidation. Through the words "cruel and unusual," the founders in effect told modern judges to pay attention to contemporary penal patterns and contemporary popular attitudes about punishment.

This was precisely the analytic framework used by the court in the earlier case, Penry v. Lynaugh, which held that, 13 years ago, death for the mentally retarded was not an unusual sanction when measured by actual practice and public sentiment. By noting dramatic trends since 1989, the court's decision in Atkins was faithful to its logic in Penry, even as it overruled Penry's result. Indeed, two of the members of the Penry majority, including its author, Justice Sandra Day O'Connor, joined the Atkins majority. Chief Justice Rehnquist and Justice Antonin Scalia were also members of the Penry majority, but they issued sharp dissents in Atkins, joined by Justice Clarence Thomas, who only came onto the court in 1991. (Interestingly, none of the Atkins dissenters challenged the basic idea that punishments that were clearly permissible at the country's founding and throughout most of American history could at some later time become cruel and unusual because of changed sentiments of ordinary citizens and elected lawmakers. Rather, the Atkins dissenters simply denied that death sentences for mentally retarded inmates have indeed become so unusual as to be unconstitutional.)

The dissenters pooh-poohed public opinion polls as soft and unreliable, highly dependent on the precise wording of a given pollster's question and other subtleties. But the very polls discussed by the dissenters themselves reveal a striking pattern: No matter who conducted the poll, or where it was conducted, or the precise wording of the question, strong majorities of ordinary citizens opposed these executions. And given that actual patterns of current punishment help define what is considered "unusual," shouldn't actual sentiments of current Americans likewise help define what is considered "cruel"?

As a legal scholar (and an optimist) I would love to see this decision help redefine the relationship between the people and the Supreme Court. Many Americans today look to the court as the ultimate -- perhaps the only real -- interpreter of the Constitution. In this, they are mistaken. Yet in its rhetoric and results, the court itself has encouraged this view, especially in the three decades since Watergate and Vietnam, which besmirched the political branches while leaving the judiciary relatively unscathed.

Earlier generations of Americans had a more democratic and participatory view of constitutional interpretation. Nowhere does the Constitution proclaim the Supreme Court as the ultimate arbiter, or even first among equals (Congress, in fact, is mentioned first); and many early presidents -- including Jefferson, Madison, Jackson and Lincoln -- viewed the judiciary as simply one of three equal branches, each of which had a key role in constitutional interpretation. Early justices often showed great deference to the views of the public and the political branches.

From the very first words of its preamble, the Constitution aimed to create a democracy founded on ordinary citizens. Unelected judges would help enforce constitutional provisions, but the provisions themselves came from ordinary people who ratified the document and from mass movements that periodically mobilized for democratizing amendments.

Much of the Constitution evinced more confidence in citizen jurors than in insulated judges; indeed, the Eighth Amendment itself reflected uneasiness about tasks that judges might perform unchecked by citizen juries, such as setting bail and imposing criminal sentences. The founders expected that popular juries would temper the hardheartedness of some professional judges.

The point may well remain true today: Juries have proved more merciful than judges in imposing the death penalty; and in a case decided only four days after Atkins, Ring v. Arizona, the court overruled yet another death penalty precedent. This one had allowed judges to bypass juries in capital sentencing. Like Atkins, the Ring decision admirably seeks to integrate the perspectives of ordinary citizens into the punishment process.

The decisions represent an important shift for the Rehnquist court. In the last eight terms, the court has invalidated congressional statutes in more than 30 cases -- four times the rate of the Warren Court. The Rehnquist Court also pointedly refused to overturn Roe v. Wade, which legalized abortion, in part because so many ordinary citizens had questioned the decision, and the justices preferred not to encourage such criticism of the court.

The dissenting justices in Atkins claimed that, once again, the court was acting imperialistically. But by banning a practice that only five states have recently engaged in, and that most citizens across the country oppose, Atkins can be read to fit a more restrained vision of judicial review. (Given that one of the particular concerns of the Fourteenth Amendment, adopted after the Civil War, was to prevent former Confederate states from imposing harsh punishments out of sync with national norms, it's worth noting that all five of these states come from the old Confederacy.)

The Atkins decision exemplifies an interpretive method with broad potential application beyond the Eighth Amendment. If the justices are willing to credit the views of the public and elected officials on the question of which punishments are cruel and unusual, the court might likewise pay more heed to democratic deliberations about which searches and seizures are reasonable and which unenumerated rights are truly fundamental in modern America.

Finding ways to consult broader public sentiment when interpreting the Constitution is often a good thing, and one that need not jeopardize individual rights. If the justices are truly interested in listening to their fellow citizens -- as all nine claim to be -- they will find that We, the People, have a lot of ideas worth hearing.

Akhil Amar is a professor of constitutional law at Yale and author of "The Bill of Rights: Creation and Reconstruction" (Yale University Press).