We’ve seen this before. Today, in Hall v. Florida, the Court reached a controversial Eighth Amendment holding based on some combination of a perceived “national consensus” and the Court’s own “independent judgment.” This two-step approach has come in for criticism, as the Court’s national consensus analysis seems carefully tailored in each case to suit the Court’s independent judgment. Yet, despite the criticisms, national consensus arises anew in case after case after case.
In this post, I’d like to ask whether the national consensus analysis, as currently employed, is worth retaining. My answer is yes — but not because a supportive consensus is a necessary feature of Eighth Amendment holdings. Rather, resort to public views can still play a useful role in preventing the Court from defying national consensuses in favor of certain punitive practices.
Hall held that, under the Eighth Amendment, states must consider IQ tests’ “standard error of measurement” when determining whether defendants are intellectually disabled and therefore ineligible for capital punishment. On its face, the “standard error” issue is a dubious subject for national consensus: it’s a technical statistical concept that is not often publicly debated, and most people likely have not considered how “standard error” relates to IQ tests for purposes of determining intellectual disability or the permissibility of capital punishment. In this respect, Hall is different from past cases, which have concerned issues of greater public salience, such as the execution of persons who are juveniles or concededly intellectually disabled.
Yet the Court was undeterred and, after a few pages on recent state legislation, concluded that there is “strong evidence of consensus that our society does not regard [Florida’s] strict [IQ] cutoff [which did not consider standard error] as proper or humane.” But can “our society” really condemn a practice for being less than “humane,” when only a very small slice of America has ever heard of the practice at issue, or formed an opinion on it? If Hall depended on the answer to that question being yes, then, as in prior Eighth Amendment cases, the Court would be pretty open to criticism.
But maybe Hall didn’t depend on there being “strong evidence of consensus” against the punitive practice at issue. Instead, maybe Hall required only that there was no national consensus in favor of the practice. That move would pose a legitimacy trade-off. On the one hand, it would require the Court to own its “independent judgment” as the true impetus for its Eighth Amendment decisions. On the other hand, it would allow the Court to be more candid about the fact that “national consensus” on high court holdings is pretty rare — anywhere and at any time, but especially in the United States of 2014. (E.g., if the “consensus” is really “national,” then why are four justices dissenting?)
Moreover, viewing national consensus as a side-constraint would lower the stakes in debates over the Court’s independent judgment. The Court wouldn’t be seizing absolute authority to invalidate punishments disfavored by “elites,” as Justice Alito alleged in Hall, but would instead be operating within a zone demarcated — and, perhaps, policed — by the democratic process. (For more, see here and here.)
In my view, the Court’s recent Eighth Amendment cases are marked by a genuine concern with respecting both democracy and federalism, even though the “national consensus” analysis has long been a misnomer. At this point, the best path forward isn’t to abandon recourse to public views, but rather to be clearer and more modest about the role that those views should play in the legal analysis.
Re’s Judicata 
I mostly agree with this analysis. It goes astray, in a minor respect, when it suggests that the existence of four dissenting votes disproves a national consensus. At least two Justices — Scalia and Thomas — reject the “national consensus” approach to the Eighth Amendment altogether in favor of an originalist approach. To Justices who think a “national consensus” irrelevant, and the Eighth Amendment very limited in scope, a vote against outlawing a punishment in the name of the Eighth Amendment says nothing at all about a national consensus. The Chief Justice and Justice Alito have more nuanced — and perhaps evolving — views, but I doubt that their votes prove the non-existence of a national consensus either.
The wonderful thing about making the Court’s perception of a “national consensus” into a Constitutional rule of law is that it prevents that consensus from ever evolving “in the wrong direction.” Nothing better than a one-way ratchet if you want to move the Country toward your views!