174
Stevens, J., dissenting
nine Justices cited Gardner, with approval, as establishing the "elemental due process requirement that a defendant not be sentenced to death 'on the basis of information which he had no opportunity to deny or explain.' Gardner v. Florida, 430 U. S. 349, 362 (1977)." 476 U. S., at 5, n. 1; see also id., at 10-11 (Powell, J., concurring in judgment) ("The Court correctly concludes that the exclusion of the proffered testimony violated due process . . . . [P]etitioner's death sentence violates the rule in Gardner").
When the Court was presented with the facts in Simmons, it was no surprise that Justice Blackmun said that "[t]he principle announced in Gardner was reaffirmed in Skipper, and it compels our decision today." 512 U. S., at 164-165 (plurality opinion). Or that Justice O’Connor quoted Gardner and Skipper for the proposition that "elemental due process" requires that a defendant must be allowed to answer a prosecutor's "prediction of future dangerousness" with "evidence on this point." 512 U. S., at 175 (internal quotation marks omitted).
Today, however, the Court seeks to revise the import of this line of cases. The first misstep in the Court's analysis is its treatment of Gardner. The majority makes much of the fact that the lead opinion was joined by only three Justices,8 and instead of accepting the plurality's due process analysis as the rule of Gardner, the Court takes Justice White's concurring opinion, which was grounded in the Eighth Amendment, as expressing the holding of the case. The Court's reading of Gardner ignores the fact that Justice White himself squarely adopted the due process holding of
8 The Court ignores the fact that Justice Brennan and Justice Marshall agreed with the plurality's conclusion that sentencing a defendant based on information he was not permitted to deny or explain violated due process, but refused to join the judgment insofar as it permitted further proceedings that could lead to another death sentence. See Gardner v. Florida, 430 U. S. 349, 364-365 (1977) (opinion of Brennan, J.); id., at 365 (Marshall, J., dissenting).
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