This educational guide is based on the linked primary sources. It is not a Court publication, is not affiliated with the Court, and is not legal advice.
In brief
Overview
According to Petitioner, petitioner defines consensus as a settled judgment of the American people.
According to Mr. Ellis, petitioner states that the reason for this consensus is that individuals with mental retardation lack the culpability required for the death penalty.
Background and question before the Court
What each side argues
Petitioner Position
According to Petitioner, petitioner defines “consensus” as a settled judgment of the American people.
Respondent (Virginia) Position
The Commonwealth argues that the statutory limit of 18 states is not fixed because many statutes do not provide for retroactive application.
What happened at oral argument
Justice Scalia asked how many states are needed for a consensus.
Justice Scalia asked how many states have enacted legislation prohibiting execution of the retarded.
Justice O'Connor asked where the burden of proof lies in a capital murder case involving a retarded defendant.
Justice asked whether an evolutionary element exists in Eighth Amendment jurisprudence.
Justice asked about the status of Virginia legislation on this point now.
What the Court decided
Why it matters
Terms to know
No glossary terms are available for this guide.
Primary sources
Read the source materials on the official site or open the immutable repository copy used for this guide.
- 819db5bb3e70cb8548b6-r1-08435f677d195a26.pdforal argument transcript
Guide generated September 19, 2026. Automated validation accepted this version.