Cite as: 509 U. S. 350 (1993)
O'Connor, J., dissenting
Appeals, for example, had examined the application of the Texas statute only twice: in Jurek itself, and in one other case. 428 U. S., at 273. Because of the posture of the case and the limited history of the statute's application, the Court could not, and did not, determine the statute's constitutionality in all circumstances. Instead, the joint opinion, which contained the narrowest ground of decision in the case, read the Texas court's interpretation of the statute as allowing the jury to consider the "particularized circumstances of the individual offense and the individual offender" before death is imposed. Id., at 274. Therefore, the joint opinion held that the statute fell within what we later called the "constitutionally permissible range of discretion in imposing the death penalty," McCleskey v. Kemp, supra, at 305. Jurek, supra, at 276.
Because Jurek involved only a facial challenge to the Texas statute, the constitutionality of the statute as implemented in particular instances was not at issue. Nor was the "as-applied" constitutionality of the statute implicated in any of our cases until Franklin v. Lynaugh, 487 U. S. 164 (1988). In Adams v. Texas, 448 U. S. 38 (1980), for example, the Court still expressed the view that the statute allowed members of the jury to consider all relevant evidence, and to use that evidence in answering the special questions, "while remaining true to their instructions and their oaths." Id., at 46. The same is true of the plurality opinion in Lockett, which stated that the joint opinion in Jurek had approved the Texas statute because it "concluded that the Texas Court of Criminal Appeals had broadly interpreted the second question—despite its facial narrowness." 438 U. S., at 607.
When the Court addressed its first as-applied challenge to the Texas death penalty statute in Franklin, it was clear that any statements in Jurek regarding the statute's constitutionality were conditioned on a particular understanding of state law. Jurek simply had not upheld the Texas death penalty statute in all circumstances. In fact, five Members
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