Justice White countered that capital punishment cannot be unconstitutional because the Constitution expressly mentions it and because two centuries of Court decisions assumed that it was constitutional. Furthermore, for White the judgment of the legislatures of 35 states was paramount, and suggested that the punishment should remain in use. He also felt that the Court should defer to a state legislature's response to the problem of juror response to the prospect of capital punishment, rather than dictate that the Eighth Amendment requires a particular response.