Cite as: 504 U. S. 719 (1992)
Scalia, J., dissenting
statute and instructions in this case, the Witherspoon-disqualified juror is a lawless juror, whereas the juror to be disqualified under the Court's new rule is not. In the first stage of Illinois' two-part sentencing hearing, jurors must determine, on the facts, specified aggravating factors, and at the second, weighing stage, they must impose the death penalty for murder with particular aggravators if they find "no mitigating factors sufficient to preclude [its] imposition." But whereas the finding of aggravation is mandatory, the finding of mitigation is optional; what constitutes mitigation is not defined and is left up to the judgment of each juror. Given that there will always be aggravators to be considered at the weighing stage, the juror who says he will never vote for the death penalty, no matter what the facts, is saying that he will not apply the law (the classic case of partiality)— since the facts may show no mitigation. But the juror who says that he will always vote for the death penalty is not promising to be lawless, since there is no case in which he is by law compelled to find a mitigating fact "sufficiently mitigating." The people of Illinois have decided, in other words, that murder with certain aggravators will be punished by death, unless the jury chooses to extend mercy. That scheme complies with our (ever-expanding) death penalty jurisprudence as it existed yesterday. The Court has, in effect, now added the new rule that no merciless jurors can sit.
* * *
Sixteen years ago, this Court decreed—by a sheer act of will, with no pretense of foundation in constitutional text or American tradition—that the People (as in We, the People) cannot decree the death penalty, absolutely and categorically, for any criminal act, even (presumably) genocide; the jury must always be given the option of extending mercy. Wood-son, 428 U. S., at 303-305. Today, obscured within the fog of confusion that is our annually improvised Eighth Amendment, "death is different" jurisprudence, the Court strikes a
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