656
O'Connor, J., dissenting
conceivable ways the error may have influenced the jury; they still must conduct their review de novo; and they still must decide whether they have sufficient confidence that the verdict would have remained unchanged even if the error had not occurred. See ante, at 641-642. The only thing the Court alters today is the degree of confidence that suffices. But Kotteakos' threshold is no more precise than Chapman's; each requires an exercise of judicial judgment that cannot be captured by the naked words of verbal formulae. Kotteakos, it is true, is somewhat more lenient; it will permit more errors to pass uncorrected. But that simply reduces the number of cases in which relief will be granted. It does not decrease the burden of identifying those cases that warrant relief.
Finally, the majority considers the costs of habeas review generally. Ante, at 637. Once again, I agree that those costs—the effect on finality, the infringement on state sovereignty, and the social cost of requiring retrial, sometimes years after trial and at a time when a new trial has become difficult or impossible—are appropriate considerations. See Withrow, post, at 703-704 (O'Connor, J., concurring in part and dissenting in part); see also post, at 686-687, 708-709; Stone, supra, at 489-491. But the Court does not explain how those costs set the harmless-error inquiry apart from any other question presented on habeas; such costs are inevitable whenever relief is awarded. Unless we are to accept the proposition that denying relief whenever possible is an unalloyed good, the costs the Court identifies cannot by themselves justify the lowering of standards announced today. The majority, of course, does not contend otherwise; instead, it adheres to our traditional approach of distinguishing between those claims that are worthy of habeas relief and those that, for prudential and equitable reasons, are not. Nonetheless, it seems to me that the Court's decision cuts too broadly and deeply to comport with the equitable and remedial nature of the habeas writ; it is neither justified nor
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