An important and somewhat neglected topic is what happens when biopolitics intersects with juridical power in courts of law. Today, we got a good example of one way it can happen. Several years ago, the Supreme Court ruled that states could not execute the “intellectually disabled.” They also let the states decide what that meant. Today, they specified (5-4, with the usual lineup for a “liberal” Kennedy opinion) that, although using an IQ score of 70 or below as evidence of such disability is ok, it’s not ok to draw a bright line cutoff at a score of 70 because one had to take into account the 5 point margin of error in the test itself. In so doing, the SCOTUS spared the life of a Florida inmate with a measured IQ of 71.
There is a lot to say here (and for me, quibbling about where the IQ cutoff should be distracts from the larger point, which is that we shouldn’t be executing people. And, IQ testing is its own set of problems), but I do think it’s notable the extent to which the decision is expressly biopolitical, and not juridical. Recall Foucault’s claim one symptom of the emergence of biopower is a decline in the death penalty (History of Sexuality 1, p. 138). Here, we see how that decline can manifest itself even within the judicial system.
Justice Alito’s dissent saw quite clearly what was going on:
“In … prior cases, when the Court referred to the evolving standards of a maturing “society,” the Court meant the standards of American society as a whole. Now, however, the Court strikes down a state law based on the evolving standards of professional societies, most notably the American Psychiatric Association (APA). The Court begins its analysis with the views of those associations … and then, after briefly discussing the enactments of state legislatures … returns to the associations’ views in interpreting Atkins [the case striking down the death penalty for the intellectually disabled] and in exercising the Court’s “independent judgment” on the constitutionality of Florida’s law … This approach cannot be reconciled with the framework prescribed by our Eighth Amendment cases.”
The subsequent argument involves a lot of discussion of federalism and whether the states have reached a consensus on how to measure IQ, but the core of the objection is that:
“The Court objects that Florida’s approach treats IQ test scores as conclusive and ignores the fact that an IQ score might not reflect “true” IQ because of errors in measurement. The Court then concludes that a State must view a defendant’s IQ as a range of potential scores calculated using a statistical concept known as the “standard error of measurement” or SEM. See Part II–B–1, infra. The Court holds that if this range includes an IQ of 70 or below (the accepted level for intellectual disability), the defendant must be permitted to produce other evidence of intellectual disability in addition to IQ scores”
Alito debates the psychology (noting that there are different kinds of testing, confidence intervals, and so on) and the difficulties in relying on it (which he says will provide inconsistent guidance to state courts, since professional organizations’ standards change, etc.) to conclude that:
“There is therefore no excuse for mechanically imposing standards that are unhinged from legal logic and that over-ride valid state laws establishing burdens of proof. The appropriate confidence level is ultimately a judgment best left to legislatures, and their judgment has been that a defendant must establish that it is more likely than not that he is intellectually disabled. I would defer to that determination”
Nobody who’s read Abnormal can be comfortable with the role of psychiatry in the judicial system. But here we see it operate as a locus of a very different kind of power from the juridical power that Alito takes himself to be defending.