Cite as: 530 U. S. 466 (2000)
O'Connor, J., dissenting
doubt that they had visibly possessed firearms. We rejected both constitutional claims. Id., at 84-91, 93.
The essential holding of McMillan conflicts with at least two of the several formulations the Court gives to the rule it announces today. First, the Court endorses the following principle: " '[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.' " Ante, at 490 (emphasis added) (quoting Jones, supra, at 252-253 (Stevens, J., concurring)). Second, the Court endorses the rule as restated in Justice Scalia's concurring opinion in Jones. See ante, at 490. There, Justice Scalia wrote: "[I]t is unconstitutional to remove from the jury the assessment of facts that alter the congressionally prescribed range of penalties to which a criminal defendant is exposed." Jones, supra, at 253 (emphasis added). Thus, the Court appears to hold that any fact that increases or alters the range of penalties to which a defendant is exposed—which, by definition, must include increases or alterations to either the minimum or maximum penalties—must be proved to a jury beyond a reasonable doubt. In McMillan, however, we rejected such a rule to the extent it concerned those facts that increase or alter the minimum penalty to which a defendant is exposed. Accordingly, it is incumbent on the Court not only to admit that it is overruling McMillan, but also to explain why such a course of action is appropriate under normal principles of stare decisis.
The Court's opinion does neither. Instead, it attempts to lay claim to McMillan as support for its "increase in the maximum penalty" rule. According to the Court, McMillan acknowledged that permitting a judge to make findings that expose a defendant to greater or additional punishment "may raise serious constitutional concern." Ante, at 486. We said nothing of the sort in McMillan. To the contrary, we
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