Cite as: 532 U. S. 451 (2001)
Scalia, J., dissenting
proposed it. It follows from the analysis of Bouie that "fair warning" of impending change cannot insulate retroactive judicial criminalization either.
Nor is there any reason in the nature of things why it should. According to the Court, the exception is necessary because prohibiting retroactive judicial criminalization would "place an unworkable and unacceptable restraint on normal judicial processes," would be "incompatible with the resolution of uncertainty that marks any evolving legal system," and would "unduly impair the incremental and reasoned development of precedent that is the foundation of the common law system." Ante, at 461. That assessment ignores the crucial difference between simply applying a law to a new set of circumstances and changing the law that has previously been applied to the very circumstances before the court. Many criminal cases present some factual nuance that arguably distinguishes them from cases that have come before; a court applying the penal statute to the new fact pattern does not purport to change the law. That, however, is not the action before us here, but rather, a square, head-on overruling of prior law—or, more accurately, something even more extreme than that: a judicial opinion acknowledging that under prior law, for reasons that used to be valid, the accused could not be convicted, but decreeing that, because of changed circumstances, "we hereby abolish the common law rule," 992 S. W. 2d, at 401, and upholding the conviction by applying the new rule to conduct that occurred before the change in law was announced. Even in civil cases, and even in modern times, such retroactive revision of a concededly valid legal rule is extremely rare. With regard to criminal cases, I have no hesitation in affirming that it was unheard of at the time the original Due Process Clause was adopted. As I discuss in detail in the following section, proceeding in that fashion would have been regarded as contrary to the judicial traditions embraced within the concept of due process of law.
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