# South Carolina v. Gathers/Dissent Scalia

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* Case Syllabus
* Opinion of the Court
* Concurring Opinion White
* Dissenting Opinions O'Connor Scalia
Justice SCALIA, dissenting.
Two Terms ago, when we decided Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), I was among four Members of the Court who believed that the decision imposed a restriction upon state and federal criminal procedures that has no basis in the Constitution. See id., at 515, 107 S.Ct., at 2539 (WHITE, J., dissenting); id., at 519, 107 S.Ct., at 2541 (SCALIA, J., dissenting). I continue to believe that Booth was wrongly decided, and my conviction that it does perceptible harm has been strengthened by subsequent writings pointing out the indefensible consequences of a rule that the specific harm visited upon society by a murderer may not be taken into account when the jury decides whether to impose the sentence of death. See ante, at 816-820 (O'CONNOR, J., dissenting); Mills v. Maryland, 486 U.S. 367, 397, 108 S.Ct. 1860, 1876, 100 L.Ed.2d 384 (1988) (REHNQUIST, C.J., dissenting). Once it is accepted, moreover, that the nature of the specific harm may be considered, I see no basis for drawing a distinction for Eighth Amendment purposes between the admirable personal characteristics of the particular victim and the particular injury caused to the victim's family and fellow citizens. Indeed, I would often find it impossible to tell which was which. (Would the fact that the victim was a dutiful husband and father be a personal characteristic or an indication of injury to others?) I therefore think the present case squarely calls into question the validity of Booth, and I would overrule that case.
It has been argued that we should not overrule so recent a decision, lest our action "appear to be . . . occasioned by nothing more than a change in the Court's personnel," and the rules we announce no more than " 'the opinions of a small group of men who temporarily occupy high office.' " Brief for Barbara Babcock et al. as Amici Curiae 29-30 (quoting Florida Dept. of Health and Rehabilitative Services v. Florida Nursing Home Assn., 450 U.S. 147, 154, 101 S.Ct. 1032, 1036, 67 L.Ed.2d 132 (1981) (STEVENS, J., concurring)). I doubt that overruling Booth will so shake the citizenry's faith in the Court. Overrulings of precedent rarely occur without a change in the Court's personnel. The only distinctive feature here is that the overruling would follow not long after the original decision. But that is hardly unprecedented. See, e.g., Daniels v. Williams, 474 U.S. 327, 330-331, 106 S.Ct. 662, 664-665, 88 L.Ed.2d 662 (1986) (overruling Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)); United States v. Scott, 437 U.S. 82, 86-87, 98 S.Ct. 2187, 2191-2192, 57 L.Ed.2d 65 (1978) (overruling United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975)); West Virginia Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943) (overruling Minersville School District Board of Education v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940)). Indeed, I had thought that the respect accorded prior decisions increases, rather than decreases, with their antiquity, as the society adjusts itself to their existence, and the surroundi g law becomes premised upon their validity. The freshness of error not only deprives it of the respect to which long-established practice is entitled, but also counsels that the opportunity of correction be seized at once, before state and federal laws and practices have been adjusted to embody it. That is particularly true with respect to a decision such as Booth, which is in that line of cases purporting to reflect "evolving standards of decency" applicable to capital punishment. Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion). Once a law-abiding society has revised its laws and practices to comply with such an erroneous decision, the existence of a new "consensus" can be appealed to-or at least the existence of the pre-existing consensus to the contrary will no longer be evident-thus enabling the error to triumph by our very failure promptly to correct it. Cf. Thompson v. Oklahoma, 487 U.S. 815, 854-855, 108 S.Ct. 2687, 2709, 101 L.Ed.2d 702 (1988) (O'CONNOR, J., concurring in judgment).
In any case, I would think it a violation of my oath to adhere to what I consider a plainly unjustified intrusion upon the democratic process in order that the Court might save face. With some reservation concerning decisions that have become so embedded in our system of government that return is no longer possible (a description that surely does not apply to Booth ), I agree with Justice Douglas: "A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it." Douglas, Stare Decisis, 49 Colum.L.Rev. 735, 736 (1949). Or as the Court itself has said: "[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions." Smith v. Allwright, 321 U.S. 649, 665, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944).
Booth has not even an arguable basis in the common-law background that led up to the Eighth Amendment, in any longstanding societal tradition, or in any evidence that present society, through its laws or the actions of its juries, has set its face against considering the harm caused by criminal acts in assessing responsibility. The Court's opinion in Booth, like today's opinion, did not even try to assert the contrary. We provide far greater reassurance of the rule of law by eliminating than by retaining such a decision.
I respectfully dissent.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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