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SCALIA, J., dissenting

First, the Court states that general questions would be insufficient because “such jurors could in all truth and candor respond affirmatively, personally confident that such dogmatic views are fair and impartial ...." Ante, at 735. In other words, jurors who would always impose the death penalty would be violating the instructions without realizing that that is what they are doing. It seems to me quite obvious that solution of this problem does not require a specific question of each juror, but can be achieved by simply changing the instructions so that these well-intentioned jurors will understand that an aggravators-always-outweigh-mitigators view is prohibited. The record does not reflect that petitioner made any objection to the clarity of the instructions in this regard.

Second, the Court asserts that the adequacy of general voir dire questions is belied by "[t]he State's own request for questioning under Witherspoon and Witt.” Ante, at 734. Without such questioning, we are told, “Witherspoon and its succeeding cases would be in large measure superfluous.” Ibid. But Witherspoon did not, as this reasoning assumes, give the State a right to exclude jurors (“[I]t is clear beyond peradventure that Witherspoon is not a ground for challenging any prospective juror,” Adams, 448 U. S., at 47–48), and it is therefore quite impossible that anything we say on that subject today could render the holding of Witherspoon “superfluous.” What the Court describes, ante, at 733, as a “very short step” from Witherspoon, Adams, and Witt, is in fact a great leap over an unbridgeable chasm of logic. Witherspoon and succeeding cases held that the State was not constitutionally prevented from excluding jurors who would on no facts impose death; from which the Court today concludes that a State is constitutionally compelled to exclude jurors who would, on the facts establishing the particular aggravated murder, invariably impose death. The Court's argument that because the Constitution requires one it must re

SCALIA, J., dissenting

quire the other obviously rests on a false premise. In any event, the mere fact that Illinois sees fit to request one or another question on voir dire in order to discover one-resultonly jurors cannot, as a logical matter, establish that more general questioning is constitutionally inadequate to do the job.

For similar reasons, I reject petitioner's argument that it is “fundamentally unfair” to allow Illinois to make specific inquiries concerning those jurors who will always vote against the death penalty but to preclude the defendant from discovering (and excluding) those jurors who will always vote in favor of death. Brief for Petitioner 14 (citing Wardius v. Oregon, 412 U. S. 470 (1973). Even if it were unfair, of course, the State should be given the option, which today's opinion does not provide, of abandoning the Witherspoon qualification. (Where the death penalty statute does not contain a unanimity requirement, I am confident prosecutors would prefer that to the wholesale elimination of jurors favoring the death penalty that will be the consequence of today's decision.) But in fact there is no unfairness in the asymmetry. By reason of Illinois' death penalty unanimity requirement, Ill. Rev. Stat., ch. 38, 1 9–1(g) (Supp. 1990), the practical consequences of allowing the two types of jurors to serve are vastly different: A single death penalty opponent can block that punishment, but 11 unwavering advocates cannot impose it. And more fundamentally, the asymmetry is not unfair because, under Illinois law as reflected in the

6 If, as the Court claims, this case truly involved “the reverse” of the principles established in Witherspoon v. Illinois, 391 U. S. 510 (1968), and the cases following it, ante, at 731, then it is difficult to understand why petitioner would not be entitled to challenge, not just those jurors who will “automatically” impose the death penalty, but also those whose sentiments on the subject are sufficiently strong that their faithful service as jurors will be “substantially impaired”—the reformulated standard we adopted in Adams v. Texas, 448 U. S. 38 (1980), and Wainwright v. Witt, 469 U. S. 412 (1985). The Court's failure to carry its premise to its logical conclusion suggests its awareness that the premise is wrong.

SCALIA, J., dissenting

statute and instructions in this case, the Witherspoondisqualified juror is a lawless juror, whereas the juror to be disqualified under the Court's new rule is not. In the first stage of Illinois' two-part sentencing hearing, jurors must determine, on the facts, specified aggravating factors, and at the second, weighing stage, they must impose the death penalty for murder with particular aggravators if they find “no mitigating factors sufficient to preclude [its] imposition.” But whereas the finding of aggravation is mandatory, the finding of mitigation is optional; what constitutes mitigation is not defined and is left up to the judgment of each juror. Given that there will always be aggravators to be considered at the weighing stage, the juror who says he will never vote for the death penalty, no matter what the facts, is saying that he will not apply the law (the classic case of partiality)since the facts may show no mitigation. But the juror who says that he will always vote for the death penalty is not promising to be lawless, since there is no case in which he is by law compelled to find a mitigating fact “sufficiently mitigating.” The people of Illinois have decided, in other words, that murder with certain aggravators will be punished by death, unless the jury chooses to extend mercy. That scheme complies with our (ever-expanding) death penalty jurisprudence as it existed yesterday. The Court has, in effect, now added the new rule that no merciless jurors can sit.

Sixteen years ago, this Court decreed—by a sheer act of will, with no pretense of foundation in constitutional text or American tradition—that the People (as in We, the People) cannot decree the death penalty, absolutely and categorically, for any criminal act, even (presumably) genocide; the jury must always be given the option of extending mercy. Woodson, 428 U. S., at 303-305. Today, obscured within the fog of confusion that is our annually improvised Eighth Amendment, “death is different” jurisprudence, the Court strikes a

SCALIA, J., dissenting

further blow against the People in its campaign against the death penalty. Not only must mercy be allowed, but now only the merciful may be permitted to sit in judgment. Those who agree with the author of Exodus, or with Immanuel Kant, must be banished from American juries—not because the People have so decreed, but because such jurors do not share the strong penological preferences of this Court. In my view, that not only is not required by the Constitution of the United States; it grossly offends it.

6 See Exodus 21:12 (“He that smiteth a man, so that he die, shall be surely put to death”); I. Kant, The Philosophy of Law 198 [1796] (W. Hastie transl. 1887) (“[W]hoever has committed Murder, must die. . . . Even if a Civil Society resolved to dissolve itself with the consent of all its members[,] ... the last Murderer lying in the prison ought to be executed before the resolution was carried out. This ought to be done in order that every one may realize the desert of his deeds ...”).

Syllabus

PATTERSON, TRUSTEE v. SHUMATE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

No. 91–913. Argued April 20, 1992—Decided June 15, 1992 Respondent Shumate was a participant in his employer's pension plan,

which contained the antialienation provision required for tax qualification under the Employee Retirement Income Security Act of 1974 (ERISA). The District Court rejected his contention that his interest in the plan should be excluded from his bankruptcy estate under $541(c)(2) of the Bankruptcy Code, which excludes property of the debtor that is subject to a restriction on transfer enforceable under "applicable nonbankruptcy law.” The court held, inter alia, that the latter phrase embraces only state law, not federal law such as ERISA, and that Shumate's interest in the plan did not qualify for protection as a spendthrift trust under state law. The court ordered that Shumate's interest in the plan be paid over to petitioner, as trustee of Shumate's bankruptcy estate. The Court of Appeals reversed, ruling that the in

terest should be excluded from the bankruptcy estate under $541(c)(2). Held: The plain language of the Bankruptcy Code and ERISA establishes

that an antialienation provision in a qualified pension plan constitutes a restriction on transfer enforceable under "applicable nonbankruptcy law" for purposes of $541(c)(2). Pp. 757–766.

(a) Plainly read, $ 541(c)(2) encompasses any relevant nonbankruptcy law, including federal law such as ERISA. The section contains no limitation on "applicable nonbankruptcy law" relating to the source of the law, and its text nowhere suggests that that phrase refers, as petitioner contends, exclusively to state law. Other sections in the Bankruptcy Code reveal that Congress knew how to restrict the scope of applicable law to “state law” and did so with some frequency. Its use of the broader phrase "applicable nonbankruptcy law” strongly suggests that it did not intend to restrict $541(c)(2) in the manner petitioner contends. Pp. 757–759.

(b) The antialienation provision contained in this ERISA-qualified plan satisfies the literal terms of $541(c)(2). The sections of ERISA and the Internal Revenue Code requiring a plan to provide that benefits may not be assigned or alienated clearly impose a “restriction on the transfer” of a debtor's “beneficial interest” within $541(c)(2)'s meaning, and the terms of the plan provision in question comply with those requirements. Moreover, the transfer restrictions are “enforceable,” as

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