Cite as: 536 U. S. 545 (2002)
Thomas, J., dissenting
See also Jones, 526 U. S., at 268 (Kennedy, J., dissenting) ("[B]y its terms, Justice Scalia's view . . . would call into question the validity of judge-administered mandatory minimum sentencing provisions, contrary to our holding in McMillan. Once the facts triggering application of the mandatory minimum are found by the judge, the sentencing range to which the defendant is exposed is altered"). There is no question but that stare decisis may yield where a prior decision's "underpinnings [have been] eroded, by subsequent decisions of this Court." United States v. Gaudin, 515 U. S. 506, 521 (1995).
Further supporting the essential incompatibility of Apprendi and McMillan, Justice Breyer concurs in the judgment but not the entire opinion of the Court, recognizing that he "cannot easily distinguish Apprendi . . . from this case in terms of logic. For that reason, I cannot agree with the plurality's opinion insofar as it finds such a distinction." Ante, at 569 (opinion concurring in part and concurring in judgment). This leaves only a minority of the Court embracing the distinction between McMillan and Apprendi that forms the basis of today's holding, and at least one Member explicitly continues to reject both Apprendi and Jones. Ante, at 569 (O'Connor, J., concurring).
* * *
"Conscious of the likelihood that legislative decisions may have been made in reliance on McMillan," in Apprendi, "we reserve[d] for another day the question whether stare decisis considerations preclude reconsideration of its narrower holding." 530 U. S., at 487, n. 13. But that day has come, and adherence to stare decisis in this case would require infidelity to our constitutional values. Because, like most Members of this Court, I cannot logically distinguish the issue here from the principles underlying the Court's decision in Apprendi, I respectfully dissent.
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