The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_794/91_794.zc

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SUPREME COURT OF THE UNITED STATES
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No. 91-794
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HENRY HARPER, et al., PETITIONERS v. VIRGINIA
DEPARTMENT OF TAXATION
on writ of certiorari to the supreme court of
virginia
[June 18, 1993]

  Justice Scalia, concurring.
  I am surprised to see an appeal to stare decisis in
today's dissent.  In Teague v. Lane, 489 U. S. 288 (1989),
Justice O'Connor wrote for a plurality that openly
rejected settled precedent controlling the scope of
retroactivity on collateral review.  -This retroactivity
determination,- the opinion said, -would normally entail
application of the Linkletter [v. Walker, 381 U. S. 618
(1965)] standard, but we believe that our approach to
retroactivity for cases on collateral review requires
modification.- Id., at 301.  The dissent in Teague was a
sort of anticipatory echo of today's dissent, criticizing the
plurality for displaying -infidelity to the doctrine of stare
decisis,- id., at 331 (Brennan, J., dissenting), for
-upset[ting] . . . our time-honored precedents,- id., at 333,
for -repudiating our familiar approach without regard for
the doctrine of stare decisis,- id., at 345, and for failing
-so much as [to] mention stare decisis,- id., at 333.
  I joined the plurality opinion in Teague.  Not only did
I believe the rule it announced was correct, see Withrow
v. Williams, 507 U. S. ___, ___ (1993) (Scalia, J.,
concurring in part and dissenting in part) (slip op., at 4),
but I also believed that abandonment of our prior
collateral-review retroactivity rule was fully in accord with
the doctrine of stare decisis, which as applied by our
Court has never been inflexible.  The Teague plurality
opinion set forth good reasons for abandoning
Linkletter-reasons justifying a similar abandonment of
Chevron Oil Co. v. Huson, 404 U. S. 97 (1971).  It noted,
for example, that Linkletter -ha[d] not led to consistent
results,- Teague, supra, at 302; but neither has Chevron
Oil.  Proof that what it means is in the eye of the
beholder is provided quite nicely by the separate opinions
filed today: Of the four Justices who would still apply
Chevron Oil, two find Davis v. Michigan Dept. of
Treasury, 489 U. S. 803 (1989), retroactive, see, post, at
2 (Kennedy, J., concurring in part and concurring in
judgment), two find it not retroactive, see post, at 11
(O'Connor, J., dissenting).  Second, the Teague plurality
opinion noted that Linkletter had been criticized by
commentators, Teague, supra, at 303; but the commentary
cited in the opinion criticized not just Linkletter, but the
Court's retroactivity jurisprudence in general, of which it
considered Chevron Oil an integral part, see Beytagh, Ten
Years of Non-Retroactivity: A Critique and a Proposal, 61
Va. L. Rev. 1557, 1558, 1581-1582, 1606 (1975).  Other
commentary, of course, has also regarded the issue of
retroactivity as a general problem of jurisprudence.  See,
e.g., Fallon & Meltzer, New Law, Non-Retroactivity, and
Constitutional Remedies, 104 Harv. L. Rev. 1731 (1991);
Schaefer, Prospective Rulings: Two Perspectives, 1982 S.
Ct. Rev. 1; Schaefer, The Control of -Sunbursts-:
Techniques of Prospective Overruling, 42 N. Y. U. L. Rev.
631 (1967); Mishkin, Forward: The High Court, The Great
Writ, and the Due Process of Time and Law, 79 Harv. L.
Rev. 56, 58-72 (1965).
  Finally, the plurality opinion in Teague justified the
departure from Linkletter by implicitly relying on the well-
settled proposition that stare decisis has less force where
intervening decisions -have removed or weakened the
conceptual underpinnings from the prior decision.-
Patterson v. McLean Credit Union, 491 U. S. 164, 173
(1989).  Justice O'Connor endorsed the reasoning
expressed by Justice Harlan in his separate opinions in
Mackey v. United States, 401 U. S. 667 (1971), and
Desist v. United States, 394 U. S. 244 (1969), and noted
that the Court had already adopted the first part of
Justice Harlan's retroactivity views in Griffith v. Kentucky,
479 U. S. 314 (1987).  See Teague, supra, at 303-305.
Again, this argument equally-indeed, even more
forcefully-supports reconsideration of Chevron Oil.
Griffith returned this Court, in criminal cases, to the
traditional view (which I shall discuss at greater length
below) that prospective decisionmaking -violates basic
norms of constitutional adjudication.-  Griffith, supra, at
322.  One of the conceptual underpinnings of Chevron Oil
was that retroactivity presents a similar problem in both
civil and criminal contexts.  See Chevron Oil, supra, at
106; see also Beytagh, supra, at 1606.  Thus, after
Griffith, Chevron Oil can be adhered to only by rejecting
the reasoning of Chevron Oil-that is, only by asserting
that the issue of retroactivity is different in the civil and
criminal settings.  That is a particularly difficult proof to
make, inasmuch as Griffith rested on -basic norms of
constitutional adjudication- and -the nature of judicial
review.-  479 U. S., at 322; see also Teague, supra, at 317
(White, J., concurring in part and concurring in judgment)
(Griffith -appear[s] to have constitutional underpinnings-).
  What most provokes comment in the dissent, however,
is not its insistence that today a rigid doctrine of stare
decisis forbids tinkering with retroactivity, which four
Terms ago did not; but rather the irony of its invoking
stare decisis in defense of prospective decisionmaking at
all.  Prospective decisionmaking is the handmaid of
judicial activism, and the born enemy of stare decisis.  It
was formulated in the heyday of legal realism and
promoted as a -techniqu[e] of judicial lawmaking- in
general, and more specifically as a means of making it
easier to overrule prior precedent.  B. Levy, Realist
Jurisprudence and Prospective Overruling, 109 U. Pa. L.
Rev. 1 (1960).  Thus, the dissent is saying, in effect, that
stare decisis demands the preservation of methods of
destroying stare decisis recently invented in violation of
stare decisis.
  Contrary to the dissent's assertion that Chevron Oil
articulated -our traditional retroactivity analysis,- post, at
1, the jurisprudence it reflects -came into being,- as
Justice Harlan observed, less than 30 years ago with
Linkletter v. Walker, 381 U. S. 618 (1965).  Mackey, supra,
at 676.  It is so un-ancient that one of the current
members of this Court was sitting when it was invented.
The true traditional view is that prospective
decisionmaking is quite incompatible with the judicial
power, and that courts have no authority to engage in the
practice.  See ante, at 6; James B. Beam Distilling Co. v.
Georgia, 501 U. S. ___, ___ (1991) (slip op., at 4) (opinion
of Souter, J.); American Trucking Assns., Inc. v. Smith,
496 U. S. 167, 201 (1990) (Scalia, J., concurring in
judgment); Desist, supra, at 258-259 (Harlan, J.,
dissenting); Great Northern R. Co. v. Sunburst Oil &
Refining Co., 287 U. S. 358, 365 (1932).  Linkletter itself
recognized that -[a]t common law there was no authority
for the proposition that judicial decisions made law only
for the future.-  381 U. S., at 622-623.  And before
Linkletter, the academic proponents of prospective judicial
decisionmaking acknowledged that their proposal
contradicted traditional practice.  See, e. g., Levy, supra,
at 2, and n. 2; Carpenter, Court Decisions and the
Common Law, 17 Colum. L. Rev. 593, 594 (1917).  Indeed,
the roots of the contrary tradition are so deep that Justice
Holmes was prepared to hazard the guess that -[j]udicial
decisions have had retrospective operation for near a
thousand years.-  Kuhn v. Fairmont Coal Co., 215 U. S.
349, 372 (1910) (dissenting opinion).
  Justice O'Connor asserts that -`[w]hen the Court
changes its mind, the law changes with it.'-  Post, at 4
(quoting Beam, supra, at ___ (O'Connor, J., dissenting)
(slip op., at 1)).  That concept is quite foreign to the
American legal and constitutional tradition.  It would have
struck John Marshall as an extraordinary assertion of raw
power.  The conception of the judicial role that he
possessed, and that was shared by succeeding generations
of American judges until very recent times, took it to be
-the province and duty of the judicial department to say
what the law is,- Marbury v. Madison, 1 Cranch 137, 177
(1803) (emphasis added)-not what the law shall be.  That
original and enduring American perception of the judicial
role sprang not from the philosophy of Nietzsche but from
the jurisprudence of Blackstone, which viewed retroactivity
as an inherent characteristic of the judicial power, a
power -not delegated to pronounce a new law, but to
maintain and expound the old one.-  1 W. Blackstone,
Commentaries 69 (1765).  Even when a -former
determination is most evidently contrary to reason . . .
[or] contrary to the divine law,- a judge overruling that
decision would -not pretend to make a new law, but to
vindicate the old one from misrepresentation.-  Id., at
69-70.  -For if it be found that the former decision is
manifestly absurd or unjust, it is declared, not that such
a sentence was bad law, but that it was not law.-  Id.,
at 70 (emphases in original).  Fully retroactive
decisionmaking was considered a principal distinction
between the judicial and the legislative power: -[I]t is said
that that which distinguishes a judicial from a legislative
act is, that the one is a determination of what the
existing law is in relation to some existing thing already
done or happened, while the other is a predetermination
of what the law shall be for the regulation of all future
cases.-  T. Cooley, Constitutional Limitations 91 (1868).
The critics of the traditional rule of full retroactivity were
well aware that it was grounded in what one of them
contemptuously called -another fiction known as the
Separation of powers.-  Kocourek, Retrospective Decisions
and Stare Decisis and a Proposal, 17 A. B. A. J. 180, 181
(1931).
  Prospective decisionmaking was known to foe and friend
alike as a practical tool of judicial activism, born out of
disregard for stare decisis.  In the eyes of its enemies, the
doctrine -smack[ed] of the legislative process,- Mishkin,
79 Harv. L. Rev., at 65, -encroach[ed] on the prerogatives
of the legislative department of government,- Von
Moschzisker, Stare Decisis in Courts of Last Resort, 37
Harv. L. Rev. 409, 428 (1924), removed -one of the great
inherent restraints upon this Court's depart[ing] from the
field of interpretation to enter that of lawmaking,- James
v. United States, 366 U. S. 213, 225 (1961) (Black, J.,
concurring in part and dissenting in part), caused the
Court's behavior to become -assimilated to that of a
legislature,- Kurland, Toward a Political Supreme Court,
37 U. Chi. L. Rev. 19, 34 (1969), and tended -to cut [the
courts] loose from the force of precedent, allowing [them]
to restructure artificially those expectations legitimately
created by extant law and thereby mitigate the practical
force of stare decisis.-  Mackey, 401 U. S., at 680 (Harlan,
J., concurring in judgment).  All this was not denied by
the doctrine's friends, who also viewed it as a device to
-augmen[t] the power of the courts to contribute to the
growth of the law in keeping with the demands of
society,- Mallamud, Prospective Limitation and the Rights
of the Accused, 56 Iowa L. Rev. 321, 359 (1970), as -a
deliberate and conscious technique of judicial lawmaking,-
Levy, 109 U. Pa. L. Rev., at 6, as a means of -facilitating
more effective and defensible judicial lawmaking,- id., at
28.
  Justice Harlan described this Court's embrace of the
prospectivity principle as -the product of the Court's
disquietude with the impacts of its fast-moving pace of
constitutional innovation,- Mackey, supra, at 676.  The
Court itself, however, glowingly described the doctrine as
the cause rather than the effect of innovation, extolling
it as a -technique- providing the -impetus . . . for the
implementation of long overdue reforms.-  Jenkins v.
Delaware, 395 U. S. 213, 218 (1969).  Whether cause or
effect, there is no doubt that the era which gave birth to
the prospectivity principle was marked by a newfound
disregard for stare decisis.  As one commentator
calculated, -[b]y 1959, the number of instances in which
the Court had reversals involving constitutional issues had
grown to sixty; in the two decades which followed, the
Court overruled constitutional cases on no less than forty-
seven occasions.-  Maltz, Some Thoughts on the Death of
Stare Decisis in Constitutional Law, 1980 Wis. L. Rev.
467.  It was an era when this Court cast overboard
numerous settled decisions, and indeed even whole areas
of law, with an unceremonious -heave-ho.-  See, e.g.,
Mapp v. Ohio, 367 U. S. 643 (1961) (overruling Wolf v.
Colorado, 338 U. S. 25 (1949)); Gideon v. Wainwright, 372
U. S. 335 (1963) (overruling Betts v. Brady, 316 U. S. 455
(1942)); Miranda v. Arizona, 384 U. S. 436, 479, n. 48
(1966) (overruling Crooker v. California, 357 U. S. 433
(1958), and Cicenia v. Lagay, 357 U. S. 504 (1958)); Katz
v. United States, 389 U. S. 347 (1967) (overruling
Olmstead v. United States, 277 U. S. 438 (1928), and
Goldman v. United States, 316 U. S. 129 (1942)).  To
argue now that one of the jurisprudential tools of judicial
activism from that period should be extended on grounds
of stare decisis can only be described as paradoxical.
  In sum, I join the opinion of the Court because the
doctrine of prospective decisionmaking is not in fact
protected by our flexible rule of stare decisis; and because
no friend of stare decisis would want it to be.