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And this also helps explain, I think, why some people are so troubled by religious arguments in favor of the government punishing and discriminating against homosexuals -- if those arguments are accepted, then this undermines our traditional of religious tolerance as well as preventing the development of sexual orientation tolerance.

I write separately only to emphasize that a contrary result would be unthinkable in a society that considers itself both decent and rational. Few seriously doubt that the death penalty is generally imposed in an arbitrary manner in this nation. The vagaries of the process by which prosecutors select those they believe worthy of death; the chances that defendants will be assigned incompetent rather than competent legal counsel, and that such representation will continue throughout the state and federal direct and collateral proceedings; the fortuitous circumstances which in combination account for the fact-finders’ decisions in capital proceedings as to who shall live or die: all result in a system of execution by chance or fate. And this is wholly aside from factors such as race, IQ, poverty, wealth, geography, and sex, each of which plays a significant part in the business of determining which persons the state decides to execute.

But surely there is a limit to arbitrariness — even to arbitrariness in the imposition of the death penalty. And executing people because their cases came too early — because their appeals ended before the Supreme Court belatedly came to the realization that it had made a grievous constitutional error in its interpretation of death penalty law, that it had erred when it failed to recognize that the United States Constitution prohibits judges, rather than jurors, from making critical factual decisions regarding life and death in capital cases — is surely arbitrariness that surpasses all bounds.

It is not uncommon for the Supreme Court to make significant errors in interpreting the constitution, see, e.g., Plessy v. Ferguson, 163 U.S. 537 (1896); Bowers v. Hardwick, 478 U.S. 186 (1986); Walton v. Arizona, 497 U.S. 639 (1990), and to correct those errors when it recognizes its mistakes, see, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954); Lawrence v. Texas, 123 S.Ct. 2472 (2003); Ring v. Arizona, 536 U.S. 584 (2002). The Court is to be commended for the integrity it displays in acknowledging its failures in such cases. Ordinarily, the consequences are that the judicial reversal is greeted with relief and the error has no further adverse effects. Certainly, all must agree that constitutional errors made by the Court should not have any greater adverse consequences than necessary. Here, however, in the dissent’s view, additional people should now be put to death following unconstitutional proceedings even though the Court has recognized the unconstitutionality inherent in those future executions, and even though had the Court not erred initially, the death sentences in question would previously have been set aside. To me, this represents a seriously warped view of the nature of our legal system, and the relationship of that system to its ultimate objective: justice.