Stogner v. California, 539 U.S. 607, 24 (2003)

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630

STOGNER v. CALIFORNIA

Opinion of the Court

at 36. The law at issue today represents a kind of extreme variant that, given the legal consensus of unconstitutionality, has not likely been often enacted in our Nation's history. Cf. 1 J. Bishop, Criminal Law 219a, p. 127 (rev. 4th ed. 1868) (declining to answer whether a law reviving time-barred prosecutions was ex post facto in part because "it is not likely to come before the courts").

Neither should it be surprising if the reasoning in a string of cases stretching back over nearly 150 years is not perfectly consistent with modern conceptions of how legal analysis should proceed. After all, Beazell v. Ohio, 269 U. S. 167 (1925), an opinion relied on by the dissent, post, at 640, is itself vulnerable to criticism that its "method of analysis is foreclosed by this Court's precedents," post, at 637. See Collins, 497 U. S., at 45-46. In assessing the case law, we find the essential fact to be the unanimity of judicial views that the kind of statute before us is ex post facto. See supra, at 617-619.

The situation is similar with respect to commentators. Here, the essential fact is that, over a span of well over a century, commentators have come to the same conclusion, and have done so with virtual unanimity. See supra, at 619- 620. We say "virtual," for the dissent identifies one commentator who did not, namely, Joel Bishop—the same commentator relied on 122 years ago by the dissent in Moore, supra, at 240. The Moore majority rejected Bishop's conclusion. So did other contemporary courts and commentators. Supra, at 617-620. We do the same.

C

The dissent says it is a "fallacy" to apply the label " 'unfair and dishonest' " to this statute, a law that revives long-dead prosecutions. Post, at 650. The dissent supports this conclusion with three arguments. First, it suggests that "retroactive extension of unexpired statutes of limitations" is no less unfair. Ibid. Second, the dissent refers to the small

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