Cite as: 529 U. S. 513 (2000)
Ginsburg, J., dissenting
ther did Justice Washington's opinion in Ogden v. Saunders, 12 Wheat. 213 (1827), which is quoted extensively by the Court, ante, at 532. In fact, the Court has never until today relied on the fourth Calder category to invalidate the application of a statute under the Ex Post Facto Clause.
It is true that the Court has on two occasions struck down as ex post facto the retroactive application of rules governing the functioning of the criminal trial process—but both decisions have since been overruled. In Kring v. Missouri, 107 U. S. 221 (1883), the Court held that Missouri was forbidden to apply retroactively a state constitutional amendment providing that a plea of guilty to second-degree murder would not automatically serve on retrial as an acquittal of the charge of first-degree murder. And in Thompson v. Utah, 170 U. S. 343 (1898), the Court held that a change in state law reducing the number of petit jurors in criminal trials from 12 to 8 was ex post facto because it deprived the defendant of "a substantial right involved in his liberty." Id., at 352. The Court in Collins overruled both Kring and Thompson v. Utah, concluding that neither decision was "consistent with the understanding of the term 'ex post facto law' at the time the Constitution was adopted." Collins, 497 U. S., at 47, 50, 51-52.
The Court today offers a different reading of Collins. It concludes that Collins overruled Kring and Thompson v. Utah because those cases improperly construed the Ex Post Facto Clause to cover all "substantial protections," and that the fourth Calder category consequently remains intact.
and not future acts," id., at 327, for only those who had aided the Confederacy would be unable to take the expurgatory oath. The Court held that the amendments violated Calder's first category by retroactively creating new offenses, 4 Wall., at 327-328, and violated the third category by retroactively imposing new punishments, id., at 328. As for Calder's fourth category, the Court said only that the amendments "subvert[ed] the presumptions of innocence" by "assum[ing] that the parties [we]re guilty." 4 Wall., at 328. As already discussed, supra, at 561, that analysis is of no help to Carmell here.
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