246
Souter, J., dissenting
It is true that the plurality opinion noted that the Supreme Court of Florida performed harmless-error review. Ibid. But the opinion's discussion of this point merely responded to Barclay's argument that the Supreme Court of Florida had failed to apply state-law precedent properly, which, Barclay maintained, required harmless-error review. See id., at 957. The plurality rejected that argument, saying that failure to apply those cases would be "mere errors of state law [that] are not the concern of this Court," and that, in any event, the Supreme Court of Florida had, contrary to petitioner's assertions, performed harmless-error review. Id., at 957-958. Nothing in the plurality's opinion suggests that harmless-error review would be constitutionally required where the sentencer had weighed an "invalid" aggravating circumstance.
It is also true that the concurrence of Justice Stevens and Justice Powell, who cast the deciding votes in Barclay, stated that Florida law required the Supreme Court of Florida to reweigh aggravating and mitigating circumstances. See id., at 974 (opinion concurring in judgment). But that simply responded to Barclay's argument that the Supreme Court of Florida failed to perform the quantum of appellate review that the Constitution requires in every capital case (regardless of whether the trial court commits state-law error). See id., at 972-973. Justice Stevens' opinion merely noted that the principal opinion in Proffitt v. Florida, 428 U. S. 242, 253 (1976) ( joint opinion of Stewart, Powell, and Stevens, JJ.), had held that reweighing satisfied the appellate-review obligation imposed by the Constitution. 463 U. S., at 974. Justice Stevens never said that re-weighing would be the constitutionally required minimum where the sentencer had weighed an "invalid" aggravating circumstance.
Although Barclay may be read as assuming that some appellate test must be passed if a death verdict is to stand in a weighing State despite the finding of an invalid aggravating
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