Cite as: 527 U. S. 1 (1999)
Opinion of Scalia, J.
ing" speculation does not disturb that allocation, but "substituting" speculation does. Make no mistake about the shift in standard: Whereas Sullivan confined appellate courts to their proper role of reviewing verdicts, the Court today puts appellate courts in the business of reviewing the defendant's guilt. The Court does not—it cannot—reconcile this new approach with the proposition that denial of the jury-trial right is structural error.
* * *
The recipe that has produced today's ruling consists of one part self-esteem, one part panic, and one part pragmatism. I have already commented upon the first ingredient: What could possibly be so bad about having judges decide that a jury would necessarily have found the defendant guilty? Nothing except the distrust of judges that underlies the jury-trial guarantee. As to the ingredient of panic: The Court is concerned that the Sullivan approach will invalidate convictions in innumerable cases where the defendant is obviously guilty. There is simply no basis for that concern. The limited harmless-error approach of Sullivan applies only when specific objection to the erroneous instruction has been made and rejected. In all other cases, the Olano plain-error rule governs, which is similar to the ordinary harmless-error analysis that the Court would apply. I doubt that the criminal cases in which instructions omit or misdescribe elements of the offense over the objection of the defendant are so numerous as to present a massive problem. (If they are, the problem of vagueness in our criminal laws, or of incompetence in our judges, makes the problem under discussion here seem insignificant by comparison.)
And as for the ingredient of pragmatism (if the defendant is unquestionably guilty, why go through the trouble of trying him again?), it suffices to quote Blackstone once again:
"[H]owever convenient [intrusions on the jury right] may appear at first, (as, doubtless, all arbitrary powers, well executed, are the most convenient,) yet let it be
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