Johnson v. Louisiana/Concurrence Blackmun

[p365] MR. JUSTICE BLACKMUN, concurring.

I join the Court's opinion and judgment in each of these cases. I add only this comment, which should be [p366] obvious and should not need saying, that in so doing I do not imply that I regard a State's split-verdict system as a wise one. My vote means only that I cannot conclude that the system is constitutionally offensive. Were I a legislator, I would disfavor it as a matter of policy. Our task here, however, is not to pursue and strike down what happens to impress us as undesirable legislative policy.

I do not hesitate to say, either, that a system employing a 7-5 standard, rather than a 9-3 or 75% minimum, would afford me great difficulty. As MR. JUSTICE WHITE points out, ante, at 362, "a substantial majority of the jury" are to be convinced. That is all that is before us in each of these cases.