546US1
Unit: $U17
[08-22-08 15:50:12] PAGES PGT: OPIN
Cite as: 546 U. S. 212 (2006)
239
Breyer, J., dissenting
prior cases. And regardless of the lower courts’ interpreta tion of our precedents, I think it more important that our own decisions have not repeated Stringer’s characterization of those precedents. See, e. g., Tuggle v. Netherland, 516 U. S. 10, 11 (1995) (per curiam) (characterizing Zant as hold ing “that a death sentence supported by multiple aggravat ing circumstances need not always be set aside if one aggra vator is found to be invalid” (emphasis added)). For the reasons stated in Parts II–A and II–B, supra, I would not take a single ambiguous sentence of dicta and derive from it a rule of law that is unjustified and that, in cases where the error is in fact harmful, would deprive a defendant of a fair and reliable sentencing proceeding. III The upshot is that I would require a reviewing court to examine whether the jury’s consideration of an unconstitu tional aggravating factor was harmful, regardless of whether the State is a weighing State or a nonweighing State. I would hold that the fact that a State is a nonweighing State may make the possibility of harmful error less likely, but it does not excuse a reviewing court from ensuring that the error was in fact harmless. Our cases in this area do not require a different result. IV The Court reaches a somewhat similar conclusion. It, too, would abolish (or at least diminish the importance of) the weighing/nonweighing distinction for purposes of harmless error analysis. But then, surprisingly, it also diminishes the need to conduct any harmless-error review at all. If all the evidence was properly admitted and if the jury can use that evidence when it considers other aggravating factors, any error, the Court announces, must be harmless. See ante, at 220 (holding that when “one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances” that underlie the invalidated
