GWEN IFILL: The Court heard arguments in two major cases today: One, a death penalty challenge on behalf of a mentally retarded man; the other, on the constitutionality of an Ohio voucher program that makes government money available to religious schools. For more on today's debate, are joined by NewsHour regular Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune. Jan, let's start with the death penalty argument. The basic case that was being made the death penalty is cruel and unusual when applied to people who are mentally retarded.
JAN CRAWFORD GREENBURG: That's right, that it would violate the constitution's eighth amendment, which prohibits punishment that's cruel and unusual to execute the mentally retarded. That's what the Justices took up today. This case comes from Virginia. It involves an appeal by a convicted killer named Daryl Atkins whose lawyers say is mentally retarded and who has an IQ of 59 when the cut-off would be about 70.
On appeal after he was sentenced to death, he argued that his death sentence was disproportionate under Virginia law because the state had never executed anyone with that low of an IQ. And last year the Supreme Court agreed to get involved to see whether the death sentence in his case would violate the federal Constitution.
GWEN IFILL: Hasn't the Court spoken on this issue before about the idea of the death penalty being extended to the mentally retarded?
JAN CRAWFORD GREENBURG: It did. It wasn't that long ago. It was in 1989. In that case the court ruled in a narrowly divided opinion, 5-4, written by Justice O'Connor, that there was no national consensus on whether or not the 8th Amendment prohibited this type of punishment. Now, to determine whether there's a national consensus, the Court said then that you had to look at the states and state laws to see if there had been any kind of evolving standards and evolving standards of decency. It noted that in 1989 only two states prohibited the execution of the mentally retarded that allowed death penalty in other cases.
GWEN IFILL: So what has changed since then?
JAN CRAWFORD GREENBURG: Well, the lawyers for Mr. Atkins argue that a lot has changed. And they say now 18 states prohibit this practice. 12 states prohibit the death penalty entirely, so taken with those states, they say a majority of the states would not allow the mentally retarded to be excused. And that, they say, is a national consensus and should indicate that the 8th Amendment prohibits the practice.
GWEN IFILL: When you say consensus, are they taking into account public opinion or just public laws?
JAN CRAWFORD GREENBURG: Well, that came up in Court today. The Chief Justice, Chief Justice William Rehnquist said how do we decide? What's a national consensus? Do we look at the state laws. He later said are you looking at polls. Justice O'Connor in the argument said no, we need to look at the states, the state laws, what the state legislatures have spoken on this issue.
GWEN IFILL: So take us inside the courtroom today. What was the conversation that was going on back and forth among the Justices and with the attorneys?
JAN CRAWFORD GREENBURG: Well, the lawyer for Mr. Atkins said the evidence is clear and he pointed to all these states that since 1989 have outlawed this practice. A lawyer for the state of Virginia said these laws are just a blip on the radar screen of public opinion, as she put it. And she said that's not a consensus. Most of these have been on the books for five years, about average, and so it's not enduring. It's not good enough.
This was a hard case, I think, to get a read on in the Justices. They seemed a little frustrated particularly in the second half of the argument when the state's lawyer was making her case. I think some of the more conservative Justices seemed reluctant to strip the states of their authority to make these kinds of calls. But others, the more liberal Justices on the court, suggested that perhaps it was time to rule that this punishment was unconstitutional.
Of course the Justice that we're all looking to in this case like we do in so many cases is Justice Sandra Day O'Connor who, as I mentioned, wrote that 1989 opinion saying no national consensus then. So, of course, everyone wants to know does she see a national consensus now.
GWEN IFILL: If the court were to overturn this lower court ruling what would be the ripple effect on other courts in other states?
JAN CRAWFORD GREENBURG: A dramatic effect. Of course it would mean that the 20 laws that don't speak to this issue, that presumably still would... the 20 states that presumably still would allow this practice could no longer do it. It would be flatly unconstitutional. Justice Scalia seemed concerned about that today because he said once the court makes this decision, the states can't... we can't go back. The states can't come back in and say, well, we've changed our mind.
GWEN IFILL: Okay. Let's move on to the other big case before the court today. That had to do with the school voucher case in Cleveland. First describe the case to us.
JAN CRAWFORD GREENBURG: Well, this involves a challenge to an Ohio program that was created in 1995 to address what was then called a crisis in the Cleveland public schools, an education crisis. The state legislature came up with this program to give students in these failing schools a way out.
And what the state legislature did at that time was say, you can make yourselves... we're going to make these grants, tuition grants available, up to $2500 per student generally available to all children in failing school districts. A group of parents and teachers immediately sued to block this practice. They argued that because the grants could be used at schools that were affiliated with religious institutions that that violated the Constitution's establishment clause, which, as you know, says that the government cannot establish a religion.
GWEN IFILL: So they are arguing that there is automatically a connection between vouchers and religion?
JAN CRAWFORD GREENBURG: Well, in this case because the vouchers are being used as schools with religious affiliations they argue that that amounts to an unconstitutional government endorsement of religion. The government, they argue, is basically handing over money to religious schools in violation of the First Amendment.
GWEN IFILL: And how many of the schools involved in the program in Cleveland are religious schools?
JAN CRAWFORD GREENBURG: It's a substantial number. Out of fifty-one participating in the program, nine are not religious. As it came out today in Court, the vast majority, up to 99 percent, of these children are going to religious schools.
But the voucher supporters very strongly argued-- and they seemed to get quite a lot of sympathy, I believe, in Court today from the Justices-- that this is not unconstitutional because there's almost a circuit breaker. This is not a case where the state is writing out a check to a religious institution. This is a case where the state -- this is their argument -- where the state is making these tuition grants available, and the parents choose what to do with that money.
GWEN IFILL: So the concept is one of private choice, that as long as the parents are the ones making this choice that it's okay. What is private choice precisely?
JAN CRAWFORD GREENBURG: Well, that is exactly what the Ohio Assistant Attorney General said was... I mean a cornerstone of her argument today. Private choice is the choice that parents have on where this money is going to go. Is it going to go to a religious school or is it going to go to another private school? That's critical or that was critical in her argument today, that this program was not... was not unconstitutional. She also said that the program was neutral. That was another important part of her argument.
GWEN IFILL: Now back to our favorite swing Justice, which is Sandra Day O'Connor. Why is she key in this one as well?
JAN CRAWFORD GREENBURG: She's very important in this case too because four Justices two years ago all but gave the green light in a ruling in a totally unrelated case but gave the green light for school vouchers. In that case they upheld the constitutionality of a federal program that permitted loans of computer education... computer equipment to religious schools.
Justice O'Connor agreed with the outcome in that case but she wouldn't sign on to their rationale. The rationale in that case by the four more conservative Justices led by Justice Thomas then said that this kind of program was available as long as it was administered neutrally -- again that neutral language. So O'Connor wouldn't go along with them. So now, you know, of course we're all trying to see where she's going to come down here too.
GWEN IFILL: Thank you, Jan.