Brett Kavanaugh Questions IQ Test Use in Defining Intellectual Disability

Constitutional Standard for Intellectual Disability

• ⚖️ Justice Kavanaugh questioned whether a defendant can succeed on an Eighth Amendment claim if the median IQ score is above 70, even with supplementary evidence.
• 💡 Assistant to the Solicitor General Harry Graver stated that the Eighth Amendment's strictures are limited by nationwide consensus.

Disagreement on IQ Score Dispositivity

• ❓ Kavanaugh pressed Graver on whether IQ scores above 70 are legally dispositive, or if other evidence could outweigh them.
• 🎯 Graver agreed that while practically dispositive, it's not a per se legal error to consider other evidence, suggesting a "totality of the circumstances" inquiry.
• 🧠 He posited a hypothetical where neurosychological batteries testing other aspects of intellectual functioning could, in some states, lead to a finding below the constitutional line, even with median IQ scores in the high 70s.

State Experimentation and Practicality

• 📈 Kavanaugh clarified if Graver believed it would be constitutional error for a court to definitively rule that a median above 70 ends an Eighth Amendment claim.
• 🗣️ Graver expressed reluctance to set a bright-line median number, indicating that the inquiry is nuanced and subject to state experimentation.
• 📊 He noted that while IQ scores might be strong, other evidence could theoretically outweigh them in specific circumstances, though he doubted this would make a difference in the current case.