Cite as: 536 U. S. 304 (2002)
Scalia, J., dissenting
and punishment, including capital punishment. See, e. g., I. Ray, Medical Jurisprudence of Insanity 65, 87-92 (W. Over-holser ed. 1962) (recounting the 1834 trial and execution in Concord, New Hampshire, of an apparent "imbecile"—imbecility being a less severe form of retardation which "differs from idiocy in the circumstance that while in [the idiot] there is an utter destitution of every thing like reason, [imbeciles] possess some intellectual capacity, though infinitely less than is possessed by the great mass of mankind"); A. Highmore, Law of Idiocy and Lunacy 200 (1807) ("The great difficulty in all these cases, is to determine where a person shall be said to be so far deprived of his sense and memory as not to have any of his actions imputed to him: or where notwithstanding some defects of this kind he still appears to have so much reason and understanding as will make him accountable for his actions . . .").
The Court is left to argue, therefore, that execution of the mildly retarded is inconsistent with the "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion) (Warren, C. J.). Before today, our opinions consistently emphasized that Eighth Amendment judgments regarding the existence of social "standards" "should be informed by objective factors to the maximum possible extent" and "should not be, or appear to be, merely the subjective views of individual Justices." Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality opinion); see also Stanford v. Kentucky, 492 U. S. 361, 369 (1989); McCleskey v. Kemp, 481 U. S. 279, 300 (1987); Enmund v. Florida, 458 U. S. 782, 788 (1982). "First" among these objective factors are the "statutes passed by society's elected representatives," Stanford, supra, at 370; because it "will rarely if ever be the case that the Members of this Court will have a better sense of the evolution in views of the American people than do their elected representatives," Thompson, supra, at 865 (Scalia, J., dissenting).
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