672
Breyer, J., dissenting
conviction," Teague, supra, at 315 (plurality opinion), and (2) that Cage "alter[s] our understanding of the bedrock procedural elements" that are essential to the fairness of a criminal trial, 489 U. S., at 311 (plurality opinion) (internal quotation marks omitted; emphasis deleted). That is because an instruction that makes "all the jury's findings" untrustworthy, Sullivan, supra, at 281, must "diminish the likelihood of obtaining an accurate conviction," Teague, supra, at 315 (plurality opinion). It is because a deprivation of a "basic protection" needed for a trial to "serve its function," Sullivan, supra, at 281 (internal quotation marks omitted), is a deprivation of a "bedrock procedural elemen[t]," Teague, supra, at 311 (plurality opinion) (internal quotation marks omitted). And it is because Cage significantly "alter[ed]" pre-existing law. 489 U. S., at 311. That is what every Court of Appeals to have considered the matter has concluded. See Tillman v. Cook, 215 F. 3d 1116, 1122 (CA10), cert. denied, 531 U. S. 1055 (2000); West v. Vaughn, 204 F. 3d 53, 61, and n. 9 (CA3 2000); Gaines v. Kelly, 202 F. 3d 598, 604-605 (CA2 2000); Humphrey v. Cain, 138 F. 3d 552, 553 (CA5) (en banc), cert. denied, 525 U. S. 935 (1998); Adams v. Aiken, 41 F. 3d 175, 178-179 (CA4 1994), cert. denied, 515 U. S. 1124 (1995); Nutter v. White, 39 F. 3d 1154, 1158 (CA11 1994). But cf. In re Smith, 142 F. 3d 832, 835-836 (CA5 1998) (concluding that explicit Supreme Court statement is necessary to make Cage retroactive for second or successive habeas purposes); Rodriguez v. Superintendent, Bay State Correctional Ctr., 139 F. 3d 270, 275-276 (CA1 1998) (same); In re Hill, 113 F. 3d 181, 184 (CA11 1997) (same). And I do not see how the majority can deny that this is so.
Consequently, Sullivan, in holding that a Cage violation can never be harmless because it leaves the defendant with no jury verdict known to the Sixth Amendment, also holds that Cage falls within Teague's "watershed" exception. The matter is one of logic. If Case One holds that all men are
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