244
Souter, J., dissenting
vating circumstance. Like Stephens, but unlike Godfrey, he was sentenced on the basis of more than one aggravating circumstance, only one of which he challenged. The issue in this case, then, is whether it would have been reasonable to believe in 1985 that a sentencer's weighing of a vague 3 aggravating circumstance does not offend the Eighth Amendment so long as the sentencer has found at least one other valid aggravating circumstance.4 Put differently, the question is whether it would have been reasonable to believe in 1985 that the holding in Stephens could apply to a weighing State. The majority answers these questions in the negative, saying that in 1985, no reasonable jurist could have failed to discover a concern with randomness in this Court's individualized-sentencing cases, or have failed to realize that a sentencer's weighing of a vague aggravating circumstance deprives a defendant of individualized sentencing. I think this answer endues the jurist with prescience, not reasonableness.
It is true that the Court in Stephens reserved judgment on the question whether its holding would apply to a weighing State:
3 I say vague and not, as the majority does, invalid, see ante, at 230, 231. There might indeed have been invalid aggravating circumstances whose consideration, even with one or more valid ones, would have tainted an ensuing death sentence in any reasonable view in 1985. Thus, it would have been unreasonable to believe in 1985 that a capital sentence could stand, without more, if the sentencer had been instructed, say, to consider constitutionally protected behavior in aggravation. See Barclay v. Florida, 463 U. S. 939, 956 (1983) (plurality opinion); Zant v. Stephens, 462 U. S. 862, 885 (1983). But I would apply that proposition to weighing and nonweighing States alike.
4 Because, in this case, valid aggravating circumstances remained, I need not discuss respondents' argument that it was reasonable to believe in 1985 that the Mississippi murder statute performed all constitutionally required narrowing in the guilt phase of petitioner's trial. Cf. Lowenfield v. Phelps, 484 U. S. 231 (1988).
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