BLACKMUN, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

503 U.S. 159

Dawson v. Delaware

No. 90-6704

Argued: Nov. 12, 1991 --- Decided: March 9, 1992

Justice BLACKMUN, concurring.

I join the Court's opinion, but write separately to note my understanding that the Court, by the penultimate paragraph of its opinion, ante at 168-169, does not require application of harmless error review on remand.

This Court previously has declined to apply harmless error analysis to certain categories of constitutional error. See, e.g., Batson v. Kentucky, 476 U.S. 79 (1986) (racial discrimination in the selection of a petit jury); Vasquez v. Hillery, 474 U.S. 254, 261-262 (1986) (racial discrimination in the selection of a grand jury); Waller v. Georgia, 467 U.S. 39, 49-50, and n. 9 (1984) (right to a public trial); Tumey v. Ohio, 273 U.S. 510, 535 (1927) (trial before an impartial judge). Because of the potential chilling effect that consideration of First Amendment activity at sentencing might have, there is a substantial argument that harmless error analysis is not appropriate for the type of error before us today. See Rose v. Clark, 478 U.S. 570, 587 (1986) (STEVENS, J., opinion concurring in the judgment) ("[V]iolations of certain constitutional rights are not, and should not be, subject to harmless error analysis, because those rights protect important values that are unrelated to the truth-seeking function of the trial"). The parties did not address this issue, and it is better left for the Supreme Court of Delaware on remand.