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EASTERN ENTERPRISES v. APFEL (97-42)
110 F.3d 150, reversed and remanded.
Syllabus
Opinion
[ O'Connor ]
Concurrence
[ Thomas ]
Dissent
[ Stevens ]
Dissent
[ Breyer ]
Other
[ Kennedy ]
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Thomas, J., concurring

SUPREME COURT OF THE UNITED STATES


No. 97—42


EASTERN ENTERPRISES, PETITIONER v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

[June 25, 1998]

Justice Thomas, concurring.

Justice O’Connor’s opinion correctly concludes that the Coal Act’s imposition of retroactive liability on petitioner violates the Takings Clause. I write separately to emphasize that the Ex Post Facto Clause of the Constitution, Art. I., §9, cl. 3, even more clearly reflects the principle that “[r]etrospective laws are, indeed, generally unjust.” 2 J. Story, Commentaries on the Constitution §1398, p. 272 (5th ed. 1981). Since Calder v. Bull, 3 Dall. 386 (1798), however, this Court has considered the Ex Post Facto Clause to apply only in the criminal context. I have never been convinced of the soundness of this limitation, which in Calder was principally justified because a contrary interpretation would render the Takings Clause unnecessary. See id., at 394 (opinion of Chase, J.). In an appropriate case, therefore, I would be willing to reconsider Calder and its progeny to determine whether a retroactive civil law that passes muster under our current Takings Clause jurisprudence is nonetheless unconstitutional under the Ex Post Facto Clause. Today’s case, however, does present an unconstitutional taking, and I join Justice O’Connor’s well-reasoned opinion in full.

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