482
Breyer, J., dissenting
changes in criminal law that deprive defendants of fair warning of the nature and consequences of their actions. It does not enshrine Blackstone's "ancient dogma that the law declared by . . . courts had a Platonic or ideal existence before the act of declaration," Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 365 (1932) (Cardozo, J.). Cf. ante, at 473-474 (Scalia, J., dissenting).
I also agree with the Court that, in applying the Due Process Clause, we must ask whether the judicial ruling in question was "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." Bouie v. City of Columbia, 378 U. S. 347, 354 (1964) (quoting J. Hall, General Principles of Criminal Law 61 (2d ed. 1960) (internal quotation marks omitted)).
I cannot agree, however, with the majority's application of that due process principle to this case. As Justice Scalia well explains, Rogers did not have fair warning that the Tennessee courts would abolish the year and a day rule or that they would retroactively apply the new law to the circumstances of his case, thereby upgrading the crime those circumstances revealed from attempted murder to murder. I therefore join Part II of Justice Scalia's dissenting opinion.
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