SCALIA, J., dissenting 729; cf. Ill. Rev. Stat., ch. 38, ¶9-1(c) (Supp. 1990) ("The court ... shall instruct the jury to consider any aggravating and any mitigating factors which are relevant . . ."); he simply fails to give it the effect the defendant desires.3 Nor can the Court's exclusion of these death-inclined jurors be justified on the theory that-regardless of what Illinois law purports to permit the Eighth Amendment prohibits a juror from always advocating a death sentence at the weighing stage. Our cases in this area hold, not that the sentencer must give effect to (or even that he must consider) the evidence offered by the defendant as mitigating, but rather that he must "not be precluded from considering" it, Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion) (emphasis added); Bell v. Ohio, 438 U. S. 637, 642 (1978) (plurality opinion) (same). See also Walton, 497 U. S., at 652 (plurality opinion) (“[T]he requirement of individualized sentencing in capital cases is satisfied by allowing the jury to 3 The Court notes that the Illinois statute lists certain potentially mitigating factors, see Ill. Rev. Stat., ch. 38, ¶9-1(c) (Supp. 1990), and therefore concludes that the legislature "must have deemed [them] relevant" to the imposition of the death penalty. Ante, at 737. It is of course true that the listed factors are "relevant" in the sense that a juror "may" find them to be mitigating, ¶9-1(c), and also in the sense that the defendant must be allowed to introduce evidence concerning these factors. But the statute's permissive and nonexhaustive list clearly does not establish what the Court needs to show, viz., that jurors must deem these (or some other factors) to be actually "mitigating." The fact that the jury has the discretion to deem evidence to be mitigating cannot establish that there is an obligation to do so. Indeed, it is impossible in principle to distinguish between a juror who does not believe that any factor can be mitigating from one who believes that a particular factor-e. g., "extreme mental or emotional disturbance," ¶9-1(c)(2)—is not mitigating. (Presumably, under today's decision a juror who thinks a "bad childhood" is never mitigating must also be excluded.) In any event, in deciding whether to vacate petitioner's sentence on account of juror impartiality-i. e., on the basis that one or more of petitioner's jurors may have refused to follow the instructions-we must be guided, not by the instructions that (perhaps) should have been given (a question of state law which we have no authority to review), but by the instructions that were given. SCALIA, J., dissenting consider all relevant mitigating evidence'") (emphasis added) (quoting Blystone v. Pennsylvania, 494 U. S. 299, 307 (1990)); Saffle v. Parks, 494 U. S. 484, 490 (1990) (“[T]he State cannot bar relevant mitigating evidence") (emphasis added); McKoy v. North Carolina, 494 U. S. 433, 442-443 (1990) (“[E]ach juror [must] be permitted to consider and give effect to mitigating evidence") (emphasis added); Penry v. Lynaugh, 492 U.S. 302, 318 (1989) (a State may not "prevent the sentencer from considering and giving effect to [mitigating] evidence") (emphasis added); id., at 328 (jury must be "provided with a vehicle for expressing its 'reasoned moral response' to that evidence in rendering its sentencing decision") (emphasis added); Mills v. Maryland, 486 U. S. 367, 375 (1988) (State may not impose any "barrier to the sentencer's consideration of all mitigating evidence") (emphasis added); Turner v. Murray, 476 U. S. 28, 34 (1986) (plurality opinion) (sentencer "must be free to weigh relevant mitigating evidence") (emphasis added); Roberts v. Louisiana, 431 U. S. 633, 637 (1977) (mandatory death penalty statute is unconstitutional because it "does not allow for consideration of particularized mitigating factors") (emphasis added); Woodson v. North Carolina, 428 U. S. 280, 303 (1976) (plurality opinion) (same); Jurek v. Texas, 428 U. S. 262, 271 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.) ("A jury must be allowed to consider... all relevant [mitigating] evidence") (emphasis added). Similarly, where the judge is the final sentencer we have held, not that he must consider mitigating evidence, but only that he may not, on legal grounds, refuse to consider it, Hitchcock v. Dugger, 481 U. S. 393, 394, 398-399 (1987); Eddings v. Oklahoma, 455 U. S. 104, 113-114 (1982) (a sentencing judge may not “refuse to consider, as a matter of law, any relevant mitigating evidence") (emphasis in original). Woodson and Lockett meant to ensure that the sentencing jury would function as a "link between contemporary community values and the penal system," Witherspoon, 391 U. S., at 519, n. 15; they did not mean to specify what the content of those values SCALIA, J., dissenting must be. The "conscience of the community," id., at 519, also includes those jurors who are not swayed by mitigating evidence. The Court relies upon dicta contained in our opinion in Ross v. Oklahoma, 487 U. S. 81 (1988). Ante, at 728-729. In that case, the defendant challenged for cause a juror who stated during voir dire that he would automatically vote to impose a death sentence if the defendant were convicted. The trial court rejected the challenge, and Ross used a peremptory challenge to remove the juror. Although we noted that the state appellate court had assumed that such a juror would not be able to follow the law, 487 U. S., at 84-85 (citing Ross v. State, 717 P. 2d 117, 120 (Okla. Crim. App. 1986)), we held that Ross was not deprived of an impartial jury because none of the jurors who actually sat on the petit jury was partial. 487 U. S., at 86-88. In reaching that conclusion, however, we expressed the view that had the challenged juror actually served, "the sentence would have to be overturned." Id., at 85. The Court attaches great weight to this dictum, which it describes as "announc[ing] our considered view," ante, at 728. This is hyperbole. It is clear on the face of the opinion that the dictum was based entirely on the fact that the state court had assumed that such a juror was unwilling to follow the law at the penalty phase-a point we did not purport to examine independently. 487 U. S., at 84-85. The Ross dictum thus merely reflects the quite modest proposition that a juror who will not follow the law is not impartial. Because Illinois would not violate due process by seating a juror who will not be swayed by mitigating evidence at the weighing stage, the Constitution does not entitle petitioner to identify such jurors during voir dire. 4 The Court's only response to this point is the suggestion that it somehow rests upon my rejecting the Woodson-Lockett line of cases. Ante, at 736. That is not so, as my quotations from over a dozen Woodson-Lockett cases make painfully clear. SCALIA, J., dissenting III Even if I agreed with the Court, however, that jurors who will always advocate a death sentence for capital murder are not "impartial" and must be excused for cause, I would not agree with the further conclusion that the Constitution requires a trial court to make specific inquiries on this subject during voir dire. In Mu'Min v. Virginia, 500 U. S. 415 (1991), we surveyed our cases concerning the requirements of voir dire and concluded that, except where interracial capital crimes are at issue, trial courts "retai[n] great latitude in deciding what questions should be asked on voir dire," id., at 424; see also Ristaino v. Ross, 424 U. S. 589, 594 (1976). We emphasized that our authority to require specific inquiries on voir dire is particularly narrow with respect to state-court trials, where we may not exercise supervisory authority and are "limited to enforcing the commands of the United States Constitution," Mu’Min, 500 U. S., at 422. We concluded, as a general matter, that a defendant was entitled to specific questions only if the failure to ask them would render his trial "fundamentally unfair," id., at 426. Thus, we have held that absent some "special circumstance," Turner, supra, at 37, a “generalized but thorough inquiry into the impartiality of the veniremen" is a constitutionally adequate voir dire. Ristaino, supra, at 598. Finally, we have long acknowledged that, in light of the credibility determinations involved, a trial court's finding that a particular juror is impartial may “be overturned only for 'manifest error,"" Patton v. Yount, 467 U. S. 1025, 1031 (1984) (quoting Irvin v. Dowd, 366 U. S. 717, 723 (1961)); see also Mu'Min, supra, at 428. Were the Court today extending Witherspoon's jurybalancing rule so as to require affirmatively that a capital sentencing jury contain a mix of views on the death penalty, that requirement would of course constitute a “special circumstance" necessitating specific inquiry into the subject on voir dire. But that is not what petitioner has sought, and it SCALIA, J., dissenting is not what the Court purports to decree. Its theory, as I have described, is that a juror who will always impose the death penalty for capital murder is one who "will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do," ante, at 729 (emphasis added). Even assuming (contrary to the reality) that that theory fits the facts of this case (i. e., that the instructions required jurors to be open to voting against the death penalty on the basis of allegedly mitigating circumstances), I see no reason why jurors who will defy this element of the instructions, like jurors who will defy other elements of the instructions, see, e. g., n. 1, supra, cannot be identified by more general questions concerning fairness and willingness to follow the law. In the present case, the trial court on voir dire specifically asked nine of the jurors who ultimately served whether they would follow the court's instructions even if they disagreed with them, and all nine answered affirmatively. Moreover, all the veniremen were informed of the nature of the case and were instructed that, if selected, they would be required to follow the court's instructions; subsequently, all 12 jurors responded negatively to a specific question whether there was any reason why they did not think they could be fair and impartial in this case. These questions, which were part of an extensive voir dire, succeeded in identifying one juror who would be unable to follow the court's instructions at the penalty phase: The juror admitted that, because of the anger he felt over the murder of his friend's parents, his sentiments in favor of the death penalty were so strong that he did not believe he could be fair to petitioner at the sentencing hearing. Taking appropriate account of the opportunity for the trial court to observe and evaluate the demeanor of the veniremen, I see no basis for concluding that its finding that the 12 jurors were impartial was manifestly erroneous. The Court provides two reasons why a specific question must be asked, but neither passes the most gullible scrutiny. |