Retroactivity of Supreme Court Decisions
Article III, Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
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.” 1 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.2 In both criminal and civil cases, however, the Court's discretion to do so has been constrained by later decisions.
In the 1960s, when the Court began its expansion of the Bill of Rights and applied its rulings to the states, it became necessary 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,3 but the Court later promulgated standards for a balancing process that resulted in different degrees of retroactivity in different cases.4 Generally, in cases in which the Court declared a rule that was “a clear break with the past,” it denied retroactivity to all defendants, with the sometime exception of the appellant himself.5 With respect to certain cases in which a new rule was intended to overcome an impairment of the truth-finding function of a criminal trial6 or to cases in which the Court found that a constitutional doctrine barred the conviction or punishment of someone,7 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.8
The Court later drew 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.” 9 Justice Harlan's habeas approach was first adopted by a plurality in Teague v. Lane10 and then by the Court in Penry v. Lynaugh.11 Thus, for collateral review in federal courts of state court criminal convictions, the general rule is that “new rules” of constitutional interpretation—those “not 'dictated by precedent existing at the time the defendant's conviction became final'” 12 —will not be applied.13 However, “[a] new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a 'watershed rul[e] of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding.” 14 Put another way, a new rule will be applied in a collateral proceeding only if it places certain kinds of conduct “beyond the power of the criminal law-making authority to prescribe” or constitutes a “new procedure[ ] without which the likelihood of an accurate conviction is seriously diminished.” 15 In Montgomery v. Louisiana, the Court extended the holding of Teague beyond the context of federal habeas review, such that when a new substantive rule of constitutional law controls the outcome of a case, state collateral review courts must give retroactive effect to that rule in the same manner as federal courts engaging in habeas review.16
As a result, at least with regard to the first exception, the Court has held that the Teague rule is constitutionally based,17 as substantive rules set forth categorical guarantees that place certain laws and punishments beyond a state’s power, making “the resulting conviction or sentence . . . by definition . . . unlawful.” 18 In contrast, procedural rules are those that are aimed at enhancing the accuracy of a conviction or sentence by regulating the manner of determining the defendant’s guilt.19 As a consequence, with respect to a defendant who did not receive the benefit of a new procedural rule, the possibility exists that the underlying conviction or sentence may “still be accurate” and the “defendant’s continued confinement may still be lawful” under the Constitution.20 In this vein, the Court has described a substantive rule as one that alters the range of conduct that the law punishes, or that prohibits “a certain category of punishment for a class of defendants because of their status or offense.” 21 Under the second exception it is “not enough under Teague to say that a new rule is aimed at improving the accuracy of a trial. More is required. 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.” 22
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.23 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 unconstitutional, the Court revealed itself to be deeply divided.24 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 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.25 Although partial or selective prospectivity is thus ruled out, neither pure retroactivity nor pure prospectivity is either required or forbidden.
Four Justices adhered to the principle that new rules, as defined above, may be applied purely prospectively, without violating any tenet of Article III or any other constitutional value.26 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.27 Apparently, the Court now has resolved this dispute, although the principal decision was by a five-to-four vote. In Harper v. Virginia Dep’t of Taxation,28 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.” 29 Four Justices continued to adhere to Chevron Oil, however,30 so that with one Justice each retired from the different sides one may not regard the issue as definitively settled.31 Future cases must, therefore, be awaited for resolution of this issue.
- 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, 622–23 (1965) (quoting 1 W. Blackstone, Commentaries *69).
- Lemon v. Kurtzman, 411 U.S. 192, 198–99 (1973).
- Linkletter v. Walker, 381 U.S. 618 (1965); Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966).
- 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).
- Desist v. United States, 394 U.S. 244, 248 (1969); United States v. Peltier, 422 U.S. 531 (1975); Brown v. Louisiana, 447 U.S. 323, 335–36 (1980) (plurality opinion); Michigan v. Payne, 412 U.S. 47, 55 (1973); United States v. Johnson, 457 U.S. 537, 549–50, 551–52 (1982).
- Williams v. United States, 401 U.S. 646, 653 (1971) (plurality opinion); Brown v. Louisiana, 447 U.S. 323, 328–30 (1980) (plurality opinion); Hankerson v. North Carolina, 432 U.S. 233, 243 (1977).
- 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).
- 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 has 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).
- Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (cited with approval in Whorton v. Bockting, 549 U.S. 406, 416 (2007)).
- 489 U.S. 288 (1989).
- 492 U.S. 302 (1989).
- Whorton v. Bockting, 549 U.S. 406, 416 (2007). 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). 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).
- For an example of the application of the Teague rule in federal collateral review of a federal court conviction, see Chaidez v. United States, 568 U.S. ___, No. 11-820, slip op. (2013). See also Welch v. United States, 578 U.S. ____, No. 15-6418, slip op. at 7 (2016) (assuming, without deciding, that the Teague framework “applies in a federal collateral challenge to a federal conviction as it does in a federal collateral challenge to a state conviction” ).
- Whorton v. Bockting, 549 U.S. 406, 416 (2007).
- Teague v. Lane, 489 U.S. 288, 307, 311–313 (1989) (plurality opinion); see also Butler v. McKellar, 494 U.S. 407, 415–416 (1990).
- See Montgomery v. Louisiana, 577 U.S. ___, No. 14-280, slip op. at 12 (2016) ( “If a State may not constitutionally insist that a prisoner remain in jail on federal habeas review, it may not constitutionally insist on the same result in its own postconviction proceedings.” ). The Court reasoned as such because new substantive rules constitute wholesale prohibitions on the state’s power to convict or sentence a criminal defendant under certain circumstances, making the underlying conviction or sentence void and providing the state with no authority to leave the underlying judgment in place during collateral review. Id. at 10–11; see also id. at 12 ( “A penalty imposed pursuant to an unconstitutional law is no less void because the prisoner’s sentence became final before the law was held unconstitutional. There is no grandfather clause that permits States to enforce punishments the Constitution forbids.” ).
- See Montgomery, slip op. at 8 ( “[T]he Constitution requires substantive rules to have retroactive effect regardless of when a conviction became final.” )
- Id. at 9.
- See Welch, slip op. at 11; see also Schriro v. Summerlin, 542 U.S. 348, 353 (2004); Penry v. Lynaugh, 492 U.S. 302, 330 (1989). Accordingly, the Court has rejected the argument that the underlying “source” of a constitutional rule—i.e., the fact that a constitutional rule on its face creates substantive or procedural rights—can determine the retroactivity of a ruling. See Welch, slip op. at 10 ( “[T]his Court has determined whether a new rule is substantive . . . by considering the function of the rule, not its underlying constitutional source.” ).
- Sawyer v. Smith, 497 U.S. 227, 242 (1990) (internal quotations and citations omitted). For application of these principles, see Montgomery, slip op. at 14–17 (holding that the Court, in interpreting the Eighth Amendment to prohibit mandatory life without parole for juvenile offenders, “did announce a new substantive rule” because the prohibition necessarily placed beyond the power of a state a particular punishment with respect to the “vast majority of juvenile offenders” ). See also Welch, slip op. at 9–11 (holding that a conviction under a statute that was later found to be void for vagueness is a substantive rule, as the invalidity of the law under the Due Process Clause altered the “range of conduct or class of persons that the law punishes.” ); Schriro, 542 U.S. at 352 (holding that the requirement that aggravating factors justifying the death penalty be found by the jury was a new procedural rule that did not apply retroactively).
- 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. at 106–07. American Trucking Assn's v. Smith, 496 U.S. 167, 179–86 (1990) (plurality opinion).
- James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991); American Trucking Assn's, Inc. v. Smith, 496 U.S. 167 (1990).
- The holding described in the text is expressly that of only a two-Justice plurality. 501 U.S. at 534–44 (Justices Souter and Stevens). Justice White, Justice Blackmun, and Justice Scalia (with Justice Marshall joining the latter Justices) concurred, id. at 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. at 549.
- 501 U.S. at 549 (dissenting opinion of Justices O’Connor and Kennedy and Chief Justice Rehnquist), and id. at 544 (Justice White concurring). See also Smith, 496 U.S. at 171 (plurality opinion of Justices O’Connor, White, Kennedy, and Chief Justice Rehnquist).
- 501 U.S. at 547, 548 (Justices Blackmun, Scalia, and Marshall concurring). In Smith, 496 U.S. at 205, these three Justices had joined the dissenting opinion of Justice Stevens arguing that constitutional decisions must be given retroactive effect.
- 509 U.S. 86 (1993).
- 509 U.S. at 97. Although 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, and not even apply 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 Griffith, 479 U.S. at 323.) Because Griffith rested in part on the principle that “the nature of judicial review requires that [the Court] adjudicate specific cases,” 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 Smith, 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.
- 509 U.S. 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.
- 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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