750
Scalia, J., dissenting
quire the other obviously rests on a false premise.5 In any event, the mere fact that Illinois sees fit to request one or another question on voir dire in order to discover one-result-only jurors cannot, as a logical matter, establish that more general questioning is constitutionally inadequate to do the job.
For similar reasons, I reject petitioner's argument that it is "fundamentally unfair" to allow Illinois to make specific inquiries concerning those jurors who will always vote against the death penalty but to preclude the defendant from discovering (and excluding) those jurors who will always vote in favor of death. Brief for Petitioner 14 (citing Wardius v. Oregon, 412 U. S. 470 (1973)). Even if it were unfair, of course, the State should be given the option, which today's opinion does not provide, of abandoning the Witherspoon qualification. (Where the death penalty statute does not contain a unanimity requirement, I am confident prosecutors would prefer that to the wholesale elimination of jurors favoring the death penalty that will be the consequence of today's decision.) But in fact there is no unfairness in the asymmetry. By reason of Illinois' death penalty unanimity requirement, Ill. Rev. Stat., ch. 38, ¶ 9-1(g) (Supp. 1990), the practical consequences of allowing the two types of jurors to serve are vastly different: A single death penalty opponent can block that punishment, but 11 unwavering advocates cannot impose it. And more fundamentally, the asymmetry is not unfair because, under Illinois law as reflected in the
5 If, as the Court claims, this case truly involved "the reverse" of the principles established in Witherspoon v. Illinois, 391 U. S. 510 (1968), and the cases following it, ante, at 731, then it is difficult to understand why petitioner would not be entitled to challenge, not just those jurors who will "automatically" impose the death penalty, but also those whose sentiments on the subject are sufficiently strong that their faithful service as jurors will be "substantially impaired"—the reformulated standard we adopted in Adams v. Texas, 448 U. S. 38 (1980), and Wainwright v. Witt, 469 U. S. 412 (1985). The Court's failure to carry its premise to its logical conclusion suggests its awareness that the premise is wrong.
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