460
Opinion of the Court
viction under statute prohibiting "crimes against nature" because, unlike in Bouie, the defendant "[could] make no claim that [the statute] afforded no notice that his conduct might be within its scope"); Douglas v. Buder, 412 U. S. 430, 432 (1973) (per curiam) (trial court's construction of the term "arrest" as including a traffic citation, and application of that construction to defendant to revoke his probation, was un-foreseeable and thus violated due process); Rabe v. Washington, 405 U. S. 313, 316 (1972) (per curiam) (reversing conviction under state obscenity law because it did "not giv[e] fair notice" that the location of the allegedly obscene exhibition was a vital element of the offense).
Petitioner observes that the Due Process and Ex Post Facto Clauses safeguard common interests—in particular, the interests in fundamental fairness (through notice and fair warning) and the prevention of the arbitrary and vindictive use of the laws. Brief for Petitioner 12-18. While this is undoubtedly correct, see, e. g., Lynce v. Mathis, 519 U. S. 433, 439-440, and n. 12 (1997), petitioner is mistaken to suggest that these considerations compel extending the strictures of the Ex Post Facto Clause to the context of common law judging. The Ex Post Facto Clause, by its own terms, does not apply to courts. Extending the Clause to courts through the rubric of due process thus would circumvent the clear constitutional text. It also would evince too little regard for the important institutional and contextual differences between legislating, on the one hand, and common law decision-making, on the other.
Petitioner contends that state courts acting in their common law capacity act much like legislatures in the exercise of their lawmaking function, and indeed may in some cases even be subject to the same kinds of political influences and pressures that justify ex post facto limitations upon legislatures. Brief for Petitioner 12-18; Reply Brief for Petitioner 15. A court's "opportunity for discrimination," however, "is more limited than [a] legislature's, in that [it] can only act
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