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BROWN v. SANDERS Breyer, J., dissenting
tory text has unambiguously answered that question. Cf. § 190.3 (enumerating aggravating and mitigating circum stances and requiring “the trier of fact [to] impose a sentence of death if [it] concludes that the aggravating circumstances outweigh the mitigating circumstances”). Instead of heeding this plain language, the Court has cho sen to modify our settled law, ignoring the dual role played by aggravating circumstances in California’s death penalty regime. Because this decision is more likely to complicate than to clarify our capital sentencing jurisprudence, I re spectfully dissent. Justice Breyer, with whom Justice Ginsburg joins, dissenting. The question before us is whether California’s approach to imposing the death penalty makes California a “weighing” or a “nonweighing” State for purposes of determining whether to apply “harmless-error” review in a certain kind of death case—namely, a case in which the death sentence rests in part on an invalid aggravating circumstance. In my view, it does not matter whether California is a “weighing” or a “nonweighing” State, as ordinary rules of appellate re view should apply. A reviewing court must find that the jury’s consideration of an invalid aggravator was harmless beyond a reasonable doubt, regardless of the form a State’s death penalty law takes. I To understand my answer, one must fully understand the question, including the somewhat misleading terminology in which the question is phrased. A Death penalty proceedings take place in two stages. At the first stage, the jury must determine whether there is something especially wrongful, i. e., “aggravating,” about the defendant’s conduct. State statutes typically list these spe
