Cite as: 532 U. S. 451 (2001)
Scalia, J., dissenting
an exercise of the sort of unfair and arbitrary judicial action against which the Due Process Clause aims to protect. Far from a marked and unpredictable departure from prior precedent, the court's decision was a routine exercise of common law decisionmaking in which the court brought the law into conformity with reason and common sense. It did so by laying to rest an archaic and outdated rule that had never been relied upon as a ground of decision in any reported Tennessee case.
The judgment of the Supreme Court of Tennessee is accordingly affirmed.
It is so ordered.
Justice Stevens, dissenting.
While I have joined Justice Scalia's entire dissent, I must add this brief caveat. The perception that common-law judges had no power to change the law was unquestionably an important aspect of our judicial heritage in the 17th century but, as he has explained, that perception has played a role of diminishing importance in later years. Whether the most significant changes in that perception occurred before the end of the 18th century or early in the 19th century is, in my judgment, a tangential question that need not be resolved in order to decide this case correctly. For me, far more important than the historical issue is the fact that the majority has undervalued the threat to liberty that is posed whenever the criminal law is changed retroactively.
Justice Scalia, with whom Justice Stevens and Justice Thomas join, and with whom Justice Breyer joins as to Part II, dissenting.
The Court today approves the conviction of a man for a murder that was not murder (but only manslaughter) when the offense was committed. It thus violates a principle— encapsulated in the maxim nulla poena sine lege—which "dates from the ancient Greeks" and has been described as
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