Cite as: 539 U. S. 607 (2003)
Kennedy, J., dissenting
"a mistake to stray beyond Calder's four categories," Carmell v. Texas, 529 U. S. 513, 539 (2000). Justice Chase himself stressed that the categories must be construed with caution to avoid any unnecessary extension: "I am under a necessity to give a construction, or explanation of the words, 'ex post facto law,' because they have not any certain meaning attached to them. But I will not go farther than I feel myself bound to do; and if I ever exercise the jurisdiction I will not decide any law to be void, but in a very clear case." 3 Dall., at 395.
The Court seems to recognize these principles, ante, at 611-612, but then relies on cases which flatly contradict them. The opinion of the New Jersey's Court of Errors and Appeals in Moore v. State, supra, on which the Court places special emphasis, see ante, at 613, 617, 628, 630, 632, expressly stated that a statute reviving an expired limitations period "is not covered by any of [Justice Chase's] classes." 43 N. J. L., at 216. The Moore court made a fleeting mention that the statute might fall within Chase's fourth category, but immediately dismissed this line of inquiry. Instead, it proceeded to "[l]oo[k] away from his classification to what he states to have been the motive for and principle sustaining the edict." Ibid. As Collins and Carmell explained, this expansive approach to the Ex Post Facto Clause is contrary to Calder's admonition that its categories must be followed with care.
The majority's lengthy defense of Moore's legitimacy, ante, at 628, exposes the weaknesses both of that case and of the Court's opinion. The majority argues Moore's statement that the statute was not covered by Justice Chase's categories referred only to the principal description of these categories, but not to the alternative one the Court now seeks to embrace. The view that a statute not covered by Justice Chase's main formulations—the only formulations our cases have treated as authoritative—may still be ex post facto if it falls within his historical examples is a view no court until
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