The case hinges on whether public attitudes toward executing the mentally retarded, usually defined as people having an IQ under 70 among other attributes, has changed since the court upheld the right of states to execute retarded criminals in 1989. Since that time, the number of states banning such punishment has increased from two to 18.
But besides the general difficulty of determining what constitutes both retarded and "cruel and unusual" punishment, the justices noted that a change would be nearly permanent and virtually impossible to go back and adjust, once an act has been found to be constitutionally impermissible.
"Assuming that I agree there is a new consensus, and now the Constitution has meaning that it did not have before, we must be careful about finding this new consensus," said Justice Antonin Scalia. "If people are dissatisfied we can't go back on it. Once we decide that no legislation can allow for the execution of the mentally retarded, we can't go back and pass a new law to do it later."
Justice Sandra Day O'Connor questioned how individual states would define "mentally retarded" and whether variations in the definition affect the current case. But James Ellis, arguing for Atkins, assured the bench that there were few problems in this area.
"But there is no uniform designation on what makes someone mentally retarded," O'Connor said.
"The definitions vary remarkably little," Ellis replied. "But the states would remain free to define mental retardation."
Then Chief Justice William Rehnquist pointed out that mental health questions in criminal cases are usually left to the defense to actively prove a problem, leaving Justice Ruth Bader Ginsburg to question whether the Virginia courts had even accepted Atkins' claim of retardation.
"What about this case," she interrupted Ellis, who was trying to finish answering Rehnquist's previous question. "The Virginia Supreme Court seemed to doubt he was mentally retarded."
"Obviously a decision will be needed by this court on that issue," Ellis replied.
The Virginia Court had actually decided that Atkins was not mentally retarded, but expressed a willingness to execute him regardless.
But the debate's turn toward the question of whether Atkins was actually handicapped -- his IQ had been tested at 59 by his defense team -- or merely extremely dumb was halted by Scalia, who remained unconvinced that it mattered whether he was handicapped at all.
"What's wrong with executing the mentally retarded?" he asked Ellis.
"They lack culpability or blame because they cannot understand their actions," Ellis replied. "I am not saying that they cannot be punished, but the death penalty should be limited to those who know what they did was wrong."
Virginia Assistant Attorney General Pamela Rumpz defended the decision to execute Atkins, because he was able to understand the charges and assist in his defense and had been found competent to stand trial, an argument that led Justice David Souter to question whether that standard applied to any mental development.
"What about, say, a five year old," he asked, implying that a lack of a "bright line" decision on competency might leave ridiculous scenarios a possibility.
"If that person deliberately and premeditatedly committed a brutal and premeditated murder," she said. "Then yes."
Rumpz centered her argument on the notion that even if 18 states have outlawed the execution of the retarded, even that does not represent the consensus needed to change the notion of what constitutes fair punishment for crimes. 38 states have capital punishment, so 18 does not even represent a majority, let alone consensus, she would repeatedly argue before the court.
As the justices pounded her over whether she even agreed that 8th Amendment constitutional protections change over time to reflect the culture, Rumpz received some help from Scalia in a moment of levity.
"You accept the court has ruled (that the 8th Amendment protections can change), but you don't agree," he said. "That's the same boat I'm in too."
But as for whether the frequency of executions of the retarded should be factor in determining cultural consensus on the definition of "cruel and unusual," Scalia used his wit to make a legal point.
"We execute very few women here in the United States. Do you think that this should prevent us from ever doing it?" he asked Rumpz, who agreed with his point.