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542 U.S. ____ (2004)

SUPREME COURT OF THE UNITED STATES

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No. 02—10038

ROBERT JAMES TENNARD, PETITIONER v. DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

[June 24, 2004]

Justice Scalia, dissenting.

Petitioner argues that Texas’s statutory special issues framework unconstitutionally constrained the jury’s discretion to give effect to his mitigating evidence of a low IQ score, violating the requirement that “ ‘ “a sentencer must be allowed to give full consideration and full effect to mitigating circumstances.” ’ ” Reply Brief for Petitioner 4 (quoting Penry v. Johnson, 532 U.S. 782, 797 (2001) (Penry II), in turn quoting Johnson v. Texas, 509 U.S. 350, 381 (1993) (O’Connor, J., dissenting)). This claim relies on Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), a case that applied principles earlier limned in Eddings v. Oklahoma, 455 U.S. 104 (1982), and Lockett v. Ohio, 438 U.S. 586 (1978).

I have previously expressed my view that this “right” to unchanneled sentencer discretion has no basis in the Constitution. See Penry I, supra, at 356—360 (opinion concurring in part and dissenting in part). I have also said that the Court’s decisions establishing this right do not deserve stare decisis effect, because requiring unchanneled discretion to say no to death cannot rationally be reconciled with our prior decisions requiring canalized discretion to say yes. “[T]he practice which in Furman [v. Georgia, 408 U.S. 238 (1972) (per curiam)] had been described as the discretion to sentence to death and pronounced constitutionally prohibited, was in Woodson [v. North Carolina, 428 U.S. 280 (1976) (plurality opinion)] and Lockett renamed the discretion not to sentence to death and pronounced constitutionally required.” Walton v. Arizona, 497 U.S. 639, 662 (1990) (Scalia, J., concurring in part and concurring in judgment).

The Court returned greater rationality to our Penry jurisprudence by cutting it back in Graham v. Collins, 506 U.S. 461 (1993), and Johnson v. Texas, supra. I joined the Court in this pruning effort, noting that “the essence of today’s holding (to the effect that discretion may constitutionally be channeled) was set forth in my dissent in Penry.” Id., at 374 (concurring opinion). As The Chief Justice notes, the lower courts’ disposition of petitioner’s Penry claim in the present case was entirely appropriate under these cases. Ante, at 2—4 (dissenting opinion). Yet the opinion for the Court does not even acknowledge their existence. It finds failings in the Fifth Circuit’s framework for analyzing Penry claims as if this Court’s own jurisprudence were not the root of the problem. “The simultaneous pursuit of contradictory objectives necessarily produces confusion.” Walton, supra, at 667.

Although the present case involves only a COA ruling, rather than a ruling directly on the merits of petitioner’s claim, I cannot require the issuance of a COA when the insubstantial right at issue derives from case law in which this Court has long left the Constitution behind and embraced contradiction. I respectfully dissent.