Cite as: 530 U. S. 466 (2000)
O'Connor, J., dissenting
Such a rule would have been in substantial tension with both our earlier acknowledgment that Patterson rejected such a rule, see 477 U. S., at 84, and our recognition that a state legislature's definition of the elements is normally dispositive, see id., at 85. If any single rule can be derived from McMillan, it is not the Court's "increase in the maximum penalty" principle, but rather the following: When a State takes a fact that has always been considered by sentencing courts to bear on punishment, and dictates the precise weight that a court should give that fact in setting a defend-ant's sentence, the relevant fact need not be proved to a jury beyond a reasonable doubt as would an element of the offense. See id., at 89-90.
Apart from Mullaney and McMillan, the Court does not claim to find support for its rule in any other pre-Jones decision. Thus, the Court is in error when it says that its rule emerges from our case law. Nevertheless, even if one were willing to assume that Mullaney and McMillan lend some support for the Court's position, that feeble foundation is shattered by several of our precedents directly addressing the issue. The only one of those decisions that the Court addresses at any length is Almendarez-Torres. There, we squarely rejected the "increase in the maximum penalty" rule: "Petitioner also argues, in essence, that this Court should simply adopt a rule that any significant increase in a statutory maximum sentence would trigger a constitutional 'elements' requirement. We have explained why we believe the Constitution, as interpreted in McMillan and earlier cases, does not impose that requirement." 523 U. S., at 247. Whether Almendarez-Torres directly refuted the "increase in the maximum penalty" rule was extensively debated in Jones, and that debate need not be repeated here. See 526 U. S., at 248-249; id., at 268-270 (Kennedy, J., dissenting). I continue to agree with Justice Kennedy that Almendarez-Torres constituted a clear repudiation of the rule the Court adopts today. See Jones, supra, at 268 (dis-
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