740
Scalia, J., dissenting
I
The Court today reaffirms our oft-repeated holding that the Sixth Amendment (which is binding on the States through the Fourteenth Amendment) does not require a jury trial at the sentencing phase of a capital case. Ante, at 726. See Clemons v. Mississippi, 494 U. S. 738, 745-746 (1990); Walton v. Arizona, 497 U. S. 639, 647-649 (1990); Cabana v. Bullock, 474 U. S. 376, 385 (1986); Spaziano v. Florida, 468 U. S. 447, 464 (1984); see also McMillan v. Pennsylvania, 477 U. S. 79, 93 (1986) (no right to jury sentencing in noncapital case). In a separate line of cases, however, we have said that the exclusion of persons who merely "express serious reservations about capital punishment" from sentencing juries violates the right to an "impartial jury" under the Sixth Amendment. Witherspoon v. Illinois, 391 U. S. 510, 518 (1968); see also Adams v. Texas, 448 U. S. 38, 40 (1980); Wainwright v. Witt, 469 U. S. 412, 423 (1985). The two propositions are, of course, contradictory: If capital sentencing is not subject to the Sixth Amendment jury guarantee, then neither is it subject to the subsidiary requirement that the requisite jury be impartial.
The Court effectively concedes that the Sixth Amendment does not apply here, relying instead upon the Due Process Clause of the Fourteenth Amendment, which it says requires that any sentencing jury be "impartial" to the same extent that the Sixth Amendment requires a jury at the guilt phase to be impartial. Ante, at 727. I agree with that. See Gardner v. Florida, 430 U. S. 349, 358 (1977) (plurality opinion) (sentencing procedures must comply with the requirements of the Due Process Clause). I do not agree, however, that unconstitutional "partiality," for either Sixth Amendment or Fourteenth Amendment purposes, is established by the fact that a juror's standard of judgment—which he applies to the defendant on trial as he would to all others— happens to be the standard least favorable to the defense. Assume, for example, a criminal prosecution in which the
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