Cite as: 536 U. S. 304 (2002)
Scalia, J., dissenting
requirements existed when the Eighth Amendment was adopted, and some of them were not even supported by current moral consensus. They include prohibition of the death penalty for "ordinary" murder, Godfrey, 446 U. S., at 433, for rape of an adult woman, Coker, 433 U. S., at 592, and for felony murder absent a showing that the defendant possessed a sufficiently culpable state of mind, Enmund, 458 U. S., at 801; prohibition of the death penalty for any person under the age of 16 at the time of the crime, Thompson, 487 U. S., at 838 (plurality opinion); prohibition of the death penalty as the mandatory punishment for any crime, Wood-son v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion), Sumner v. Shuman, 483 U. S. 66, 77-78 (1987); a requirement that the sentencer not be given unguided discretion, Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), a requirement that the sentencer be empowered to take into account all mitigating circumstances, Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion), Eddings v. Oklahoma, supra, at 110; and a requirement that the accused receive a judicial evaluation of his claim of insanity before the sentence can be executed, Ford, 477 U. S., at 410-411 (plurality opinion). There is something to be said for popular abolition of the death penalty; there is nothing to be said for its incremental abolition by this Court.
This newest invention promises to be more effective than any of the others in turning the process of capital trial into a game. One need only read the definitions of mental retardation adopted by the American Association on Mental Retardation and the American Psychiatric Association (set forth in the Court's opinion, ante, at 308, n. 3) to realize that the symptoms of this condition can readily be feigned. And whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), Jones v. United States, 463 U. S. 354, 370, and n. 20 (1983), the capital defendant who feigns mental retardation risks nothing at all. The mere pendency
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