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June 20, 2002, 2:00 p.m. Personal Problems The Supremes ignore the Constitution in Atkins. By Richard W. Garnett

oppose the death penalty. To be clear, I accept the idea that the death penalty can serve as a deterrent; I am convinced that retribution is the justification and proper purpose of punishment; and I continue to believe in the reality and facticity of evil. Nevertheless, I have come to believe that the abolition of the death penalty could be an important step in building what Pope John Paul II has called a "Culture of Life," and that opposition to capital punishment can serve as a powerful witness to the transcendent dignity of the human person.

All that said, as a lawyer, law teacher, and citizen, I can only shake my head at Atkins v. Virginia, today's Supreme Court's decision outlawing the execution of persons with severe developmental disabilities. The Court's holding — an abrupt about-face from its 1989 Penry decision — means that even when such a person has been found competent to stand trial, convicted of capital murder (i.e., found beyond a reasonable doubt to have caused another's death with a culpable state of mind), and condemned to death by a sentencer who was given a fair opportunity to consider the moral relevance of the killer's disabilities — even then, the "standards of decency" currently embraced by a slim majority of Supreme Court Justices trumps the judgments of legislators, prosecutors, jurors, and voters.

Now again, I like this result. It strikes me as humane, if not democratic. I would vote for it as a legislator and campaign for it as an activist. But I also live under a Constitution. And I am quite convinced that my likes and dislikes are irrelevant to the question of whether the Eighth Amendment to the United States Constitutions forbids those who disagree with me from enacting and enforcing laws that reflect their likes and dislikes. Similarly irrelevant, in my view, are most of the (inconclusive) evidence and authorities (e.g., advocacy groups' amicus curiae briefs, legislative margins and trends, the views of European Union, and even the position of my own Catholic bishops) on which Justice Stevens's majority opinion purports to rely.

Justice Stevens's opinion concludes with the pronouncement, "we are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty." But the legislatures of 20 states — and millions of our fellow citizens — disagree. Try as I might, there seems to be no getting around the fact that today's decision is not so much constitutional law as it is — in Justice Scalia's words — a breathtakingly arrogant assumption of power.

None of this is to deny that, in many respects, our constitutional regime is "counter-majoritarian" with respect to fundamental individual rights. And I see no reason to disagree with Justice Stevens's statement that "the basic concept underlying the Eighth Amendment is nothing less than the dignity of man." Still, our Constitution quite clearly reflects the judgment — one with which good and reasonable people can disagree — that capital punishment is, or at least can be, consistent with that dignity. The death penalty, then, is a problem whose resolution is left to the public square, not the courtroom. I am afraid, in the end, that Justice Scalia is correct: "Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members."

— Richard W. Garnett is a professor at the University of Notre Dame's law school.