746
Scalia, J., dissenting
must be.4 The "conscience of the community," id., at 519, also includes those jurors who are not swayed by mitigating evidence.
The Court relies upon dicta contained in our opinion in Ross v. Oklahoma, 487 U. S. 81 (1988). Ante, at 728-729. In that case, the defendant challenged for cause a juror who stated during voir dire that he would automatically vote to impose a death sentence if the defendant were convicted. The trial court rejected the challenge, and Ross used a peremptory challenge to remove the juror. Although we noted that the state appellate court had assumed that such a juror would not be able to follow the law, 487 U. S., at 84-85 (citing Ross v. State, 717 P. 2d 117, 120 (Okla. Crim. App. 1986)), we held that Ross was not deprived of an impartial jury because none of the jurors who actually sat on the petit jury was partial. 487 U. S., at 86-88. In reaching that conclusion, however, we expressed the view that had the challenged juror actually served, "the sentence would have to be overturned." Id., at 85. The Court attaches great weight to this dictum, which it describes as "announc[ing] our considered view," ante, at 728. This is hyperbole. It is clear on the face of the opinion that the dictum was based entirely on the fact that the state court had assumed that such a juror was unwilling to follow the law at the penalty phase—a point we did not purport to examine independently. 487 U. S., at 84-85. The Ross dictum thus merely reflects the quite modest proposition that a juror who will not follow the law is not impartial.
Because Illinois would not violate due process by seating a juror who will not be swayed by mitigating evidence at the weighing stage, the Constitution does not entitle petitioner to identify such jurors during voir dire.
4 The Court's only response to this point is the suggestion that it somehow rests upon my rejecting the Woodson-Lockett line of cases. Ante, at 736. That is not so, as my quotations from over a dozen Woodson-Lockett cases make painfully clear.
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