470
Scalia, J., dissenting
Bouie does indeed use those quoted terms; but they have been wrenched entirely out of context. The "fair warning" to which Bouie and subsequent cases referred was not "fair warning that the law might be changed," but fair warning of what constituted the crime at the time of the offense. And Bouie did not express disapproval of "unexpected and indefensible changes in the law" (and thus implicitly approve "expected or defensible changes"). It expressed disapproval of "judicial construction of a criminal statute" that is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." 378 U. S., at 354 (emphasis added; internal quotation marks omitted). It thus implicitly approved only a judicial construction that was an expected or defensible application of prior cases interpreting the statute. Extending this principle from statutory crimes to common-law crimes would result in the approval of retroactive holdings that accord with prior cases expounding the common law, and the disapproval of retroactive holdings that clearly depart from prior cases expounding the common law. According to Bouie, not just "unexpected and indefensible" retroactive changes in the common law of crimes are bad, but all retroactive changes.
Bouie rested squarely upon "[t]he fundamental principle that 'the required criminal law must have existed when the conduct in issue occurred,' " ibid. (Nulla poena sine lege.) Proceeding from that principle, Bouie said that "a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result [prohibited by the Ex Post Facto Clause] by judicial construction." Id., at 353- 354. There is no doubt that "fair warning" of the legislature's intent to change the law does not insulate retroactive legislative criminalization. Such a statute violates the Ex Post Facto Clause, no matter that, at the time the offense was committed, the bill enacting the change was pending and assured of passage—or indeed, had already been passed but not yet signed by the President whose administration had
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