CRS Annotated Constitution

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Retroactivity Versus Prospectivity.—One of the distinguishing features of an advisory opinion is that it lays down a rule to be applied to future cases, much as does legislation generally. It should therefore follow that an Article III court could not decide purely prospective cases, cases which do not govern the rights and disabilities of the parties to the cases.487 The Court asserted that this principle is true, while applying it only to give retroactive effect to the parties to the immediate case.488 Yet, occasionally, the[p.684]Court did not apply its holding to the parties before it,489 and in a series of cases beginning in the mid–1960s it became embroiled in attempts to limit the retroactive effect of its—primarily but not exclusively490—constitutional–criminal law decisions. The results have been confusing and unpredictable.491

Prior to 1965, “both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this Court . . . subject to [certain] limited exceptions.”492 Statutory and judge–made law have consequences, at least to the extent that people must rely on them in making decisions and shaping their conduct. Therefore, the Court was moved to recognize that there should be a reconciling of constitutional interests reflected in a new rule of law with reliance interests founded upon the old.493 In both criminal and civil cases, however, the Court’s discretion to do so has been constrained by later decisions.

When in the 1960s the Court began its expansion of the Bill of Rights and applied the rulings to the States, a necessity arose to determine the application of the rulings to criminal defendants who had exhausted all direct appeals but who could still resort to habeas corpus, to those who had been convicted but still were on direct appeal, and to those who had allegedly engaged in conduct but who had not gone to trial. At first, the Court drew the line at cases in which judgments of conviction were not yet final, so that all persons in those situations obtained retrospective use of decisions,494 but the Court then promulgated standards for a balancing process that resulted in different degrees of retroactivity in dif[p.685]ferent cases.495 Generally, in cases in which the Court declared a rule which was “a clear break with the past,” it denied retroactivity to all defendants, with the sometime exception of the appellant himself.496 With respect to certain cases in which a new rule was intended to overcome an impairment of the truth–finding function of a criminal trial497 or to cases in which the Court found that a constitutional doctrine barred the conviction or punishment of someone,498 full retroactivity, even to habeas claimants, was the rule. Justice Harlan strongly argued that the Court should sweep away its confusing balancing rules and hold that all defendants whose cases are still pending on direct appeal at the time of a law–changing decision should be entitled to invoke the new rule, but that no habeas claimant should be entitled to benefit.499

The Court has now drawn a sharp distinction between criminal cases pending on direct review and cases pending on collateral review. For cases on direct review, “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”500 Justice Harlan’s habeas approach was then adopted by a plurality in Teague v. Lane501 and then by the Court in Penry v. Lynaugh.502 Thus, for collateral review in federal courts of state court criminal convictions, the general rule is that “new rules” of constitutional interpretation, those that break new ground or impose a new obligation on the States or the Federal Government, announced after a defendant’s conviction has become final will not be applied. For such habeas cases, a “new rule” is defined very broadly to include interpretations that are a logical outgrowth or application of an earlier rule unless the result was “dic[p.686]tated” by that precedent.503 The only exceptions are for decisions placing certain conduct or defendants beyond the reach of the criminal law, and for decisions recognizing a fundamental procedural right “without which the likelihood of an accurate conviction is seriously diminished.”504

What the rule is to be, and indeed if there is to be a rule, in civil cases has been disputed to a rough draw in recent cases. As was noted above, there is a line of civil cases, constitutional and nonconstitutional, in which the Court has declined to apply new rules, the result often of overruling older cases, retrospectively, sometimes even to the prevailing party in the case.505 As in criminal cases, the creation of new law, through overrulings or otherwise, may result in retroactivity in all instances, in pure prospectivity, or in partial prospectivity in which the prevailing party obtains the results of the new rule but no one else does. In two cases raising the question when States are required to refund taxes collected under a statute that is subsequently ruled to be unconstitutional, the Court revealed itself to be deeply divided.506 The question in Beam was whether the company could claim a tax refund under an earlier ruling holding unconstitutional the imposition of certain taxes upon its products. The holding of a fractionated Court was that it could seek a refund, because in the earlier ruling the Court had applied the holding to the contesting[p.687]company and once a new rule has been applied retroactively to the litigants in a civil case considerations of equality and stare decisis compel application to all.507 While partial or selective prospectivity is thus ruled out, neither pure retroactivity or pure prospectivity is either required or forbidden.

Four Justices adhered to the principle that new law, new rules, as defined above, may be applied purely prospectively, without violating any tenet of Article III or any other constitutional value.508 Three Justices argued that all prospectivity, whether partial or total, violates Article III by expanding the jurisdiction of the federal courts beyond true cases and controversies.509 Future cases must, therefore, be awaited for resolution of this issue.

Supplement: [P. 687, add to text following n.509:]

Apparently, the Court now has resolved this dispute, although the principal decision is a close 5 to 4 result. In Harper v. Virginia Dep’t of Taxation,26 the Court adopted the principle of the Griffith decision in criminal cases and disregarded the Chevron Oil approach in civil cases. Henceforth, in civil cases, the rule is: “When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.” 27 Four Justices continued to adhere to Chevron Oil, however,28 so that with one Justice each retired from the different sides one may not regard the issue as definitively settled.29


487 For a masterful discussion of the issue in both criminal and civil contexts, see Fallon & Meltzer, New Law, Non–Retroactivity, and Constitutional Remedies, 104 L. Rev.1731 (1991).
488 Stovall v. Denno, 388 U.S. 293, 301 (1967).
489 England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 422 (1964); James v. United States, 366 U.S. 213 (1961). See also Morrissey v. Brewer, 408 U.S. 471, 490 (1972).
490 Noncriminal constitutional cases included Lemon v. Kurtzman, 411 U.S. 192 (1973); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Cipriano v. City of Houma, 395 U.S. 701 (1969). Indeed, in Buckley v. Valeo, 424 U.S. 1 (1976), and Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the Court postponed the effectiveness of its decision for a period during which Congress could repair the flaws in the statute. Noncriminal, nonconstitutional cases include Chevron Oil Co. v. Huson, 404 U.S. 97 (1971); Allen v. State Board of Elections, 393 U.S. 544 (1969); Hanover Shoe v. United Shoe Machinery Corp., 392 U.S. 481 (1968); Simpson v. Union Oil Co., 377 U.S. 13 (1964).
491 Because of shifting coalitions of Justices, Justice Harlan complained, the course of retroactivity decisions “became almost as difficult to follow as the tracks made by a beast of prey in search of its intended victim.” Mackey v. United States, 401 U.S. 667, 676 (1971) (separate opinion).
492 Robinson v. Neil, 409 U.S. 505, 507 (1973). The older rule of retroactivity derived from the Blackstonian notion “that the duty of the court was not to ‘pronounce a new law, but to maintain and expound the old one.”’ Linkletter v. Walker, 381 U.S. 618, 622–623 (1965) (quoting 1 W. Blackstone, Commentaries *69).
493 Lemon v. Kurtzman, 411 U.S. 192, 198–199 (1973).
494 Linkletter v. Walker, 381 U.S. 618 (1965); Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966).
495 Johnson v. New Jersey, 384 U.S. 719 (1966); Stovall v. Denno, 388 U.S. 293 (1967); Adams v. Illinois, 405 U.S. 278 (1972).
496 Desist v. United States, 394 U.S. 224, 248 (1969); United States v. Peltier, 422 U.S. 531 (1975); Brown v. Louisiana, 447 U.S. 323, 335–336 (1980) (plurality opinion); Michigan v. Payne, 412 U.S. 47, 55 (1973); United States v. Johnson, 457 U.S. 537, 549–550, 551–552 (1982).
497 Williams v. United States, 401 U.S. 646, 653 (1971) (plurality opinion); Brown v. Louisiana, 447 U.S. 323, 328–330 (1980) (plurality opinion); Hankerson v. North Carolina, 432 U.S. 233, 243 (1977).
498 United States v. United States Coin & Currency, 401 U.S. 715, 724 (1971); Moore v. Illinois, 408 U.S. 786, 800 (1972); Robinson v. Neil, 409 U.S. 505, 509 (1973).
499 Mackey v. United States, 401 U.S. 667, 675 (1971) (separate opinion); Desist v. United States, 394 U.S. 244, 256 (1969) (dissenting). Justice Powell also strongly supported the proposed rule. Hankerson v. North Carolina, 432 U.S. 233, 246–248 (1977) (concurring in judgment); Brown v. Louisiana, 447 U.S. 323, 337 (1980) (concurring in judgment).
500 Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
501 489 U.S. 288 (1989).
502 492 U.S. 302 (1989).
503 Penry, supra, 492 U.S., 314. Put another way, it is not enough that a decision is “within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision.” A decision announces a “new rule” if its result “was susceptible to debate among reasonable minds” and if it was not “an illogical or even a grudging application” of the prior decision. Butler v. McKellar, 494 U.S. 407, 412–415 (1990).

Supplement: [P. 686, add to n.503:]

For additional elaboration on “new law,” see O’Dell v. Netherland, 521 U.S. 151 (1997) ; Lambrix v. Singletary, 520 U.S. 518 (1997) ; Gray v. Netherland, 518 U.S. 152 (1996) . But compare Bousley v. Brooks, 523 U.S. 614 (1998) .

504 Teague v. Lane, 489 U.S. 288, 307, 311–313 (1989) (plurality opinion); Butler v. McKellar, 494 U.S. 407, 415–416 (1990). Under the second exception it is “not enough that a new rule is aimed at improving the accuracy of a trial. . . . A rule that qualifies under this exception must not only improve accuracy, but also ‘alter our understanding of the bedrock procedural elements’ essential to the fairness of a proceeding.” Sawyer v. Smith, 497 U.S. 227, 242 (1990) (emphasis in original).
505 The standard that has been applied was enunciated in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). Briefly, the question of retroactivity or prospectivity was to be determined by a balancing of the equities. To be limited to prospectivity, a decision must have established a new principle of law, either by overruling clear past precedent on which reliance has been had or by deciding an issue of first impression whose resolution was not clearly foreshadowed. The courts must look to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. Then, the courts must look to see whether a decision to apply retroactively a decision will produce substantial inequitable results. Id., 106–107. American Trucking Assns., Inc. v. Smith, 496 U.S. 167, 179–186 (1990) (plurality opinion).
506 James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991); American Trucking Assns., Inc. v. Smith, 496 U.S. 167 (1990). And, of course, the retirements since the decisions were handed down further complicate discerning the likely Court position.
507 Beam, supra. The holding described in the text is expressly that of only a two–Justice plurality. Id., 501 U.S., 534–544 (Justices Souter and Stevens). Justice White, Justice Blackmun, and Justice Scalia (with Justice Marshall joining the latter Justices) concurred, id., 544, 547, 548 (respectively), but on other, and in the instance of the three latter Justices, and broader justifications. Justices O’Connor and Kennedy and Chief Justice Rehnquist dissented. Id., 549.
508 Beam, supra, 501 U.S., 549 (dissenting opinion of Justices O’Connor and Kennedy and Chief Justice Rehnquist), and id., 544 (Justice White concurring). And see Smith, supra, 496 U.S., 171 (plurality opinion of Justices O’Connor, White, Kennedy, and Chief Justice Rehnquist).
509 Beam, supra, 501 U.S., 547, 548 (Justices Blackmun, Scalia, and Marshall concurring). These three Justices, in Smith, supra, 496 U.S., 205, had joined the dissenting opinion of Justice Stevens arguing that constitutional decisions must be given retroactive effect.

Supplement Footnotes

26 509 U.S. 86 (1993) .
27 Id. at 97. While the conditional language in this passage might suggest that the Court was leaving open the possibility that in some cases it might rule purely prospectively, not even applying its decision to the parties before it, other language belies that possibility. “This rule extends Griffith’s ban against ‘selective application of new rules.’ ” [Citing 479 U.S. at 323]. Inasmuch as Griffith rested in part on the principle that “the nature of judicial review requires that [the Court] adjudicate specific cases,” Griffith, 479 U.S. at 322, deriving from Article III’s case or controversy requirement for federal courts and forbidding federal courts from acting legislatively, the “Court has no more constitutional authority in civil cases than in criminal cases to disregard current law or to treat similarly situated litigants differently.” 509 U.S. at 97 (quoting American Trucking, 496 U.S. at 214 (Justice Stevens dissenting)). The point is made more clearly in Justice Scalia’s concurrence, in which he denounces all forms of nonretroactivity as “the handmaid of judicial activism.” Id. at 105.
28 Id. at 110 (Justice Kennedy, with Justice White, concurring); 113 (Justice O’Connor, with Chief Justice Rehnquist, dissenting). However, these Justices disagreed in this case about the proper application of Chevron Oil.
29 But see Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) (setting aside a state court refusal to give retroactive effect to a U.S. Supreme Court invalidation of that State’s statute of limitations in certain suits, in an opinion by Justice Breyer, Justice Blackmun’s successor); Ryder v. United States, 515 U.S. 177, 184–85 (1995) (“whatever the continuing validity of Chevron Oil after” Harper and Reynoldsville Casket).
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