Thomas dissented from the denial of certiorari, which he thought should be granted so the Court could rule that the fact of a prior conviction, when an element of a crime, should be decided by a jury. Thomas believed this exception to the Apprendi rule was not found within the Constitution itself, but only derived from prior precedent that a majority of the Court no longer supported. "The Court’s duty to resolve this matter is particularly compelling, because we are the only court authorized to do so. And until we do so, countless criminal defendants will be denied the full protection afforded by the Fifth and Sixth Amendments, notwithstanding the agreement of a majority of the Court that this result is unconstitutional. There is no good reason to allow such a state of affairs to persist."
^Justice O'Connor retired January 31, 2006. Of the justices who participated the entire term, Justice Stevens joined the fewest of Thomas's opinions, with four.
