In a landmark 2002 case, the court ruled that the Constitution bars the execution of “mentally retarded offenders,” but left open the question of how a state might assess the disability. The new case, Moore v. Texas, aims to fill some of that void in the law.
In the days that followed that 2002 ruling, Sen. Jeff Sessions (R-Ala.) ― whom President-elect Donald Trump has picked for attorney general ― said the Supreme Court’s death penalty decision left him “very troubled.”
“The court seemed to say that they had divined, somehow, that the American people had evolved in their thinking and, therefore, the laws their legislatures had passed were not valid anymore,” Sessions said during an unrelated debate on the Senate floor decrying a Pledge of Allegiance ruling. “That they could not execute people who were retarded.”
What the Alabama senator appeared to critique here is an old constitutional precedent, first announced by Chief Justice Earl Warren in 1958, that the Constitution’s prohibition against “cruel and unusual” punishment should reflect society’s progress. The court’s 2002 ruling relied on this precedent.
“The basic concept underlying the Eighth Amendment is nothing less than the dignity of man,” Warren wrote in Trop v. Dulles. “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
To Sessions, this was not a theory that should guide the Supreme Court’s decision-making.
“However you feel about that,” he continued in that same Senate session, “that is a dangerous philosophy, but it is a philosophy afoot in America today. It is a philosophy, I think, that is dangerous to liberty. If you care about the Constitution ... you will enforce it, the good and bad parts.”
To be sure, the Eighth Amendment says nothing about the death penalty, and Sessions isn’t alone in his view that the amendment shouldn’t be interpreted through the lens of society’s evolution. Just last year, in a lethal injection case, the late Justice Antonin Scalia faulted the 1958 decision and suggested it should be overruled.
The death penalty itself remains constitutional, and Sessions, if confirmed as attorney general, won’t have much say in what happens to capital punishment in the courts. His input, like that of Attorney General Loretta Lynch in the case of accused South Carolina church gunman Dylann Roof, would be limited to recommending the ultimate punishment in individual federal prosecutions.
Be that as it may, Sessions’ remarks in 2002 offer a window into the subject ― if not into how he feels the courts should interpret America’s founding document.
“The way to erode the power of the Constitution to protect our liberties is to start playing around with the meaning of words, just redefining those words,” Sessions said. “And they come to mean whatever a judge says they do. That is a particularly pernicious thing because, you see, judges are not accountable. Federal judges are not accountable to the public. They are given a lifetime appointment.”
Sessions himself was denied appointment to the federal bench in 1986.