112
Souter, J., concurring in judgment
courts may be unduly influenced by the Court's new attitude, rather than its specific prescribed test.
It is, of course, entirely appropriate for the Court to perform a lawmaking function as a necessary incident to its Article III responsibility for the decision of "Cases" and "Controversies." In my judgment, however, a desire to reshape the law does not provide a legitimate basis for issuing what amounts to little more than an advisory opinion that, at best, will have the precedential value of pure dictum and may in time unduly restrict the protections of the Double Jeopardy Clause. "It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Burton v. United States, 196 U. S. 283, 295 (1905); see also Ashwander v. TVA, 297 U. S. 288, 345- 348 (1936) (Brandeis, J., concurring). Accordingly, while I concur in the judgment of affirmance, I do not join the Court's opinion.
Justice Souter, concurring in the judgment.
I concur in the Court's judgment and with much of its opinion. As the Court notes, ante, at 102, we have already recognized that Halper's statements of standards for identifying what is criminally punitive under the Fifth Amendment needed revision, United States v. Ursery, 518 U. S. 267, 284- 285, n. 2 (1996), and there is obvious sense in employing common criteria to point up the criminal nature of a statute for purposes of both the Fifth and Sixth Amendments. See United States v. One Assortment of 89 Firearms, 465 U. S. 354, 362-366 (1984); United States v. Ward, 448 U. S. 242, 248-249 (1980); Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963); see also Ward, supra, at 254 ("[I]t would be quite anomalous to hold that [the statute] created a criminal penalty for the purposes of the Self-Incrimination Clause but a civil penalty for all other purposes").
Applying the Court's Kennedy-Ward criteria leads me directly to the conclusion of Justice Stevens's opinion con-
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