# Rogers v. Tennessee > Supreme Court of the United States · May 14, 2001 · 532 U.S. 451 URL: https://www.frixlaw.com/law-library/cases/9842165 ## Case - **Full name:** Rogers v. Tennessee - **Court:** Supreme Court of the United States - **Decided:** May 14, 2001 - **Citations:** 532 U.S. 451; 121 S. Ct. 1693; 149 L. Ed. 2d 697; 2001 U.S. LEXIS 3519 - **Precedential status:** Published - **Opinion:** Dissent by Breyer - **Judges:** Scalia, O'Connor, Stevens, Thomas, Breyer - **Cited by:** 544 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9842165 ## How later opinions describe it (automated extraction) - holding that ex post facto analysis of judicial decisions must be conducted under the Due Process Clause and that retroactive application of judicial interpretation does not’ violate due process unless the change was “ ‘unexpected and indefensible by reference to the law which… - stating that the Ex Post Facto Clause principles cannot strictly be applied to the common law, but concluding that "a judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect ... [when] … - holding that the “retroactive application of judicial interpretations of criminal statutes” violates the due process right to fair notice only when such application is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue” … - concluding "that a judicial alteration of a common law doctrine ofcriminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is `unexpected and indefensible by reference to the law which had been expressed prior to the co… - holding that the retroactive application of a judicial decision abolishing the common law "year and a day” rule was not an ex post facto violation because that constitutional clause applies to legislative acts — black letter law— not to judicial decisionmaking ## Opinion text Justice Breyer, dissenting. I agree with the Court’s basic approach. Justice Cardozo pointed out that retroactivity should be determined “not by metaphysical conceptions of the nature of judge-made law,... but by considerations of convenience, of utility, and of the deepest sentiments of justice.” The Nature of the Judicial Process 148-149 (1921). Similarly, the Due Process Clause asks us to consider the basic fairness or unfairness of retroactive application of the Tennessee court’s change in the law. That Clause provides protection against after-the-fact *482 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. 858 , 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 ease. 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9842165. Public record. Not legal advice.