480
Scalia, J., dissenting
by reference to the law as it then existed," ibid. This retort rests upon the fallacy that I discussed earlier: that "expected or defensible" "abolition" of prior law was approved by Bouie. It was not—and according such conclusive effect to the "defensibility" (by which I presume the Court means the "reasonableness") of the change in law will validate the retroactive creation of many new crimes.
Finally, the Court seeks to establish fair warning by discussing at great length, ante, at 464-466, how unclear it was that the year-and-a-day rule was ever the law in Tennessee. As I have already observed, the Supreme Court of Tennessee is the authoritative expositor of Tennessee law, and has said categorically that the year-and-a-day rule was the law. Does the Court mean to establish the principle that fair warning of impending change exists—or perhaps fair warning can be dispensed with—when the prior law is not crystal clear? Yet another boon for retroactively created crimes.
I reiterate that the only "fair warning" discussed in our precedents, and the only "fair warning" relevant to the issue before us here, is fair warning of what the law is. That warning, unlike the new one that today's opinion invents, goes well beyond merely "safeguarding defendants against unjustified and unpredictable breaks with prior law," ante, at 462 (emphasis added). It safeguards them against changes in the law after the fact. But even accepting the Court's novel substitute, the opinion's conclusion that this watered-down standard has been met seems to me to proceed on the principle that a large number of almost-valid arguments makes a solid case. As far as I can tell, petitioner had nothing that could fairly be called a "warning" that the Supreme Court of Tennessee would retroactively eliminate one of the elements of the crime of murder.
* * *
To decide this case, we need only conclude that due process prevents a court from (1) acknowledging the validity, when
Page: Index Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 NextLast modified: October 4, 2007