Justice Ginsburg tells Texas to stop ignoring science

Her Notoriousness is not amused.

CREDIT: AP Photo/Craig Fritz, File
CREDIT: AP Photo/Craig Fritz, File

Texas cannot disregard the medical community’s standards when it assesses which inmates are intellectually disabled — and therefore which inmates cannot be sentenced to death under the Constitution.

A 5–3 Supreme Court announced this decision in Moore v. Texas, in an opinion written by Justice Ruth Bader Ginsburg. Justice Anthony Kennedy, a conservative with relatively moderate views on the death penalty, crossed-over to vote with the Court’s four liberals.

Justice Ginsburg’s opinion is an affirmation that science trumps states’ rights, at least in a case like this where a state appeared to invent a method of diagnosing intellectual disabilities that has little grounding in medicine or psychology.

Fifteen years ago, in Atkins v. Virginia, the Supreme Court held that “death is not a suitable punishment for a mentally retarded criminal.” The Atkins opinion, however, also contained a pretty substantial loophole — “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.”

Several states took this loophole as a license to invent methods of assessing which inmates are “mentally retarded,” an antiquated term for people with intellectual disabilities. In 2014’s Hall v. Florida, however, the justices began to limit states’ leeway to do so. “The legal determination of intellectual disability is distinct from a medical diagnosis,” Kennedy wrote in Hall, “but it is informed by the medical community’s diagnostic framework.”


Ginsburg’s opinion in Moore expands on Hall’s insight, explaining that adjudications of intellectual disability should be “informed by the views of medical experts.”

Justice Ginsburg’s opinion involves the tragic case of Bobby James Moore, who has an IQ of about 70 and whose intellectual disability was apparent at a young age. “At 13,” Ginsburg writes, “Moore lacked basic understanding of the days of the week, the months of the year, and the seasons; he could scarcely tell time or comprehend the standards of measure or the basic principle that subtraction is the reverse of addition.”

Moore’s teachers frequently separated him “from the rest of the class and told [him] to draw pictures.” Then, “after failing every subject in the ninth grade, Moore dropped out of high school. Cast out of his home, he survived on the streets, eating from trash cans, even after two bouts of food poisoning.”

In 1980, Moore shot and killed a store clerk during a botched robbery. He was soon sentenced to die.

Rather than following current clinical standards used to assess whether Moore is intellectual disabled, Texas’ highest criminal court relied on a mixture of outdated diagnostic manuals and subjective tests such as whether “those who knew [Moore] best during the developmental stage — his family, friends, teachers, employers, authorities — th[ought] he was mentally retarded at that time, and, if so, act[ed] in accordance with that determination.”


As Ginsburg explains, the Texas court felt that granting “persons with ‘mild’ intellectual disability” an exemption from the death penalty may not align with “the ‘consensus of Texas citizens’ on who ‘should be exempted from the death penalty.’”

Nevertheless, Ginsburg writes, “mild levels of intellectual disability, although they may fall outside Texas citizens’ consensus, nevertheless remain intellectual disabilities, and States may not execute anyone in ‘the entire category of [intellectually disabled] offenders.’”

Texas cannot disregard scientific standards in the way it did in the Moore case, and it certainly cannot do so in order to place a court’s subjective view of public sentiment ahead of a constitutional right.

So score a point for science. Though, it should be noted that Moore does not completely strip states of their discretion in death penalty cases involving the intellectually disabled. “States have some flexibility,” Ginsburg concedes, “but not ‘unfettered discretion,’ in enforcing Atkins’ holding.”

Nevertheless, after Moore, “the medical community’s current standards” will “supply one constraint on States’ leeway in this area.”