# Payne v. Tennessee/Concurrence Scalia

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Justice SCALIA, with whom Justice O'CONNOR and Justice KENNEDY join as to Part II, concurring.
* The Court correctly observes the injustice of requiring the exclusion of relevant aggravating evidence during capital sentencing, while requiring the admission of all relevant mitigating evidence, see, e.g., Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion). I have previously expressed my belief that the latter requirement is both wrong and, when combined with the remainder of our capital sentencing jurisprudence, unworkable. See Walton v. Arizona, 497 U.S. ----, ----, 110 S.Ct. 3047, ----, 111 L.Ed.2d 511 (1990) (SCALIA, J., concurring in part and concurring in judgment). Even if it were abandoned, however, I would still affirm the judgment here. True enough, the Eighth Amendment permits parity between mitigating and aggravating factors. But more broadly and fundamentally still, it permits the People to decide (within the limits of other constitutional guarantees) what is a crime and what constitutes aggravation and mitigation of a crime.
The response to Justice MARSHALL's strenuous defense of the virtues of stare decisis can be found in the writings of Justice MARSHALL himself. That doctrine, he has reminded us, "is not 'an imprisonment of reason.' " Guardians Assn. v. Civil Service Comm'n of New York City, 463 U.S. 582, 618, 103 S.Ct. 3221, 3241, 77 L.Ed.2d 866 (1983) (MARSHALL, J., dissenting) (quoting United States v. International Boxing Club of New York, Inc., 348 U.S. 236, 249, 75 S.Ct. 259, 266, 99 L.Ed. 290 (1955) (Frankfurter, J., dissenting)). If there was ever a case that defied reason, it was Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), imposing a constitutional rule that had absolutely no basis in constitutional text, in historical practice, or in logic. Justice MARSHALL has also explained that " '[t]he jurist concerned with public confidence in, and acceptance of the judicial system might well consider that, however admirable its resolute adherence to the law as it was, a decision contrary to the public sense of justice as it is, operates, so far as it is known, to diminish respect for the courts and for law itself.' " Flood v. Kuhn, 407 U.S. 258, 293, n. 4, 92 S.Ct. 2099, 2117, n. 4, 32 L.Ed.2d 728 (1972) (dissenting opinion) (quoting Szanton, Stare Decisis; A Dissenting View, 10 Hastings L.J. 394, 397 (1959)) (internal quotations omitted). Booth's stunning ipse dixit, that a crime's unanticipated consequences must be deemed "irrelevant" to the sentence, 482 U.S., at 503, 107 S.Ct., at 2533, conflicts with a public sense of justice keen enough that it has found voice in a nationwide "victim's rights" movement.
Today, however, Justice MARSHALL demands of us some "special justification"-beyond the mere conviction that the rule of Booth significantly harms our criminal justice system and is egregiously wrong-before we can be absolved of exercising "[p]ower, not reason," post, at 844. I do not think that is fair. In fact, quite to the contrary, what would enshrine power as the governing principle of this Court is the notion that an important constitutional decision with plainly inadequate rational support must be left in place for the sole reason that it once attracted five votes.
It seems to me difficult for those who were in the majority in Booth to hold themselves forth as ardent apostles of stare decisis. That doctrine, to the extent it rests upon anything more than administrative convenience, is merely the application to judicial precedents of a more general principle that the settled practices and expectations of a democratic society should generally not be disturbed by the courts. It is hard to have a genuine regard for stare decisis without honoring that more general principle as well. A decision of this Court which, while not overruling a prior holding, nonetheless announces a novel rule, contrary to long and unchallenged practice, and pronounces it to be the Law of the Land-such a decision, no less than an explicit overruling, should be approached with great caution. It was, I suggest, Booth, and not today's decision, that compromised the fundamental values underlying the doctrine of stare decisis.

## 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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