170
Stevens, J., dissenting
also 476 U. S., at 9-10 (Powell, J., concurring in judgment)." Id., at 175 (opinion concurring in judgment).
Thus, this case is not about whether petitioner was given a fair sentencing hearing; instead, the question presented is whether, despite the admittedly unfair hearing, he should be put to death because his trial was conducted before Simmons was decided. Because the Court regards the holding in Simmons as nothing more than a novel "court-made rule," ante, at 156, it rejects petitioner's plea. In my view, our decision in Simmons applied a fundamental principle that is as old as the adversary system itself, and that had been quite clearly articulated by this Court in two earlier opinions. Accordingly, I respectfully dissent.
I
My analysis begins where the majority tersely ends—with petitioner's contention that the rule in Simmons implicates "the fundamental fairness and accuracy of the criminal proceeding," Saffle v. Parks, 494 U. S. 484, 495 (1990), and therefore should be retroactively applied even if it would constitute a "new" rule under Teague v. Lane, 489 U. S. 288, 307 (1989).
Our decision in Teague recognized two exceptions to the general rule of nonretroactivity. The relevant exception for our purposes establishes that "a new rule should be applied retroactively if it requires the observance of 'those procedures that . . . are "implicit in the concept of ordered liberty." ' " Ibid. (quoting Mackey v. United States, 401 U. S. 667, 693 (1971) (Harlan, J., concurring in judgments in part and dissenting in part), in turn quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937)). In the opinion that provided the basis for the limitations on collateral review adopted in Teague, Justice Harlan emphasized the importance of protecting "bedrock procedural elements" that are "essential to the substance of a full hearing." Mackey, 401 U. S., at 693- 694. We endorsed that view, with the caveat that this
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