Page:United States Reports 546.pdf/452

 546US1

Unit: $U17

[08-22-08 15:50:12] PAGES PGT: OPIN

Cite as: 546 U. S. 212 (2006)

241

Breyer, J., dissenting

phasis” on the sole valid aggravator of robbery for pecuniary gain. Id., at 753–754; see also id., at 773, n. 23 (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., concurring in part and dissenting in part). The Court’s only answer is to assert that “Clemons main­ tains the distinction envisioned in Zant.” Ante, at 218, n. 3 (citing Clemons, supra, at 745). But Clemons did no such thing. Although the Court did observe the differences be­ tween the statutory schemes of Georgia and Mississippi, it certainly did not, as the Court claims, suggest that harmless-error analysis should never be conducted in the for­ mer and always be conducted in the latter. Rather, the Court made the unremarkable statement that “[i]n a State like Georgia, where aggravating circumstances serve only to make a defendant eligible for the death penalty and not to determine the punishment, the invalidation of one aggravat­ ing circumstance does not necessarily require an appellate court to vacate a death sentence and remand to a jury.” Clemons, supra, at 744–745 (emphasis added). Of course, the implication of the qualiﬁer “necessarily” is that, in some cases, a jury’s consideration of an invalidated aggravating circumstance might require that a death sentence be va­ cated, even “[i]n a State like Georgia.” In sum, an inquiry based solely on the admissibility of the underlying evidence is inconsistent with our previous cases. And as explained above, see supra, at 231–234, the potential for a tilting of the scales toward death is present even in those States (like Georgia and Virginia) that permit a jury to consider all of the circumstances of the crime. V It may well be that the errors at issue in this case were harmless. The State of California did not ask us to consider the Ninth Circuit’s contrary view, and I have not done so. Given the fact that I (like the Court in this respect) would