Cite as: 532 U. S. 451 (2001)
Scalia, J., dissenting
464-466, the Supreme Court of Tennessee said it was, see 992 S. W. 2d, at 396, 400, and this reasonable reading of state law by the State's highest court is binding upon us.
Petitioner's claim is that his conviction violated the Due Process Clause of the Fourteenth Amendment, insofar as that Clause contains the principle applied against the legislature by the Ex Post Facto Clause of Article I. We first discussed the relationship between these two Clauses in Bouie v. City of Columbia, 378 U. S. 347 (1964). There, we considered Justice Chase to have spoken for the Court in Calder v. Bull, 3 Dall. 386, 390 (1798), when he defined an ex post facto law as, inter alia, one that "aggravates a crime, or makes it greater than it was, when committed." 378 U. S., at 353 (emphasis deleted). We concluded that, "[i]f a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction." Id., at 353-354. The Court seeks to avoid the obvious import of this language by characterizing it as mere dicta. See ante, at 459. Only a concept of dictum that includes the very reasoning of the opinion could support this characterization. The ratio decidendi of Bouie was that the principle applied to the legislature though the Ex Post Facto Clause was contained in the Due Process Clause insofar as judicial action is concerned. I cannot understand why the Court derives such comfort from the fact that later opinions applying Bouie have referred to the Due Process Clause rather than the Ex Post Facto Clause, see ante, at 459-460; that is entirely in accord with the rationale of the case, which I follow and which the Court discards.
The Court attempts to cabin Bouie by reading it to prohibit only " 'unexpected and indefensible' " judicial law revision, and to permit retroactive judicial changes so long as the defendant has had "fair warning" that the changes might occur. Ante, at 462. This reading seems plausible because
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