OCTOBER TERM, 1992
Syllabus
HARPER ET AL.
v. VIRGINIA DEPARTMENT OF TAXATION
CERTIORARI TO THE SUPREME COURT OF VIRGINIA
No. 91-794. Argued December 2, 1992-Decided June 18, 1993
In
Davis v.
Michigan Dept. of Treasury, 489 U. S. 803, this Court
invalidated Michigan's practice of taxing retirement benefits paid
by the Federal Government while exempting retirement benefits paid
by the State or its political subdivisions. Because Michigan
conceded that a refund to federal retirees was the appropriate
remedy, the Court remanded for entry of judgment against the State.
Virginia subsequently amended a similar statute that taxed federal
retirees while exempting state and local retirees. Petitioners,
federal civil service and military retirees, sought a refund of
taxes assessed by Virginia before the revision of this statute.
Applying the factors set forth in
Chevron Oil Co. v.
Huson, 404 U.
S. 97, 106-107, a state trial court denied relief to
petitioners as to all taxable events occurring before
Davis
was decided. In affirming, the Virginia Supreme Court concluded
that
Davis should not be applied retroactively under
Chevron Oil and
American Trucking Assns., Inc. v.
Smith, 496 U.
S. 167 (plurality opinion). It also held, as matters of state
law, that the assessments were neither erroneous nor improper and
that a decision declaring a tax scheme unconstitutional has solely
prospective effect. In
James B. Beam Distilling Co. v.
Georgia, 501 U. S. 529, however, six Members of this Court
required the retroactive application of
Bacchus Imports,
Ltd. v.
Dias, 468 U. S. 263-which
prohibited States from imposing higher excise taxes on imported
alcoholic beverages than on locally produced beverages-to claims
arising from facts predating that decision. Those Justices
disagreed with the Georgia Supreme Court's use of
Chevron
Oil's retroactivity analysis. After this Court ordered
reevaluation of petitioners' suit in light of
Beam, the
Virginia Supreme Court reaffirmed its decision in all respects. It
held that
Beam did not foreclose the use of
Chevron
Oil's analysis because
Davis did not decide whether its
rule applied retroactively.
Held:
1. 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 still
open on direct review and as to all events, regardless of whether
such events predate or postdate the announcement of the rule. Pp.
94-99.
87
(a) This rule fairly reflects the position of a majority of
Justices in
Beam and extends to civil cases the ban against
"selective application of new rules" in criminal cases.
Griffith v.
Kentucky, 479 U. S. 314, 323.
Mindful of the "basic norms of constitutional adjudication"
animating the Court's view of retroactivity in criminal cases,
id., at 322-that the nature of judicial review strips the
Court of the quintessentially legislative prerogative to make rules
of law retroactive or prospective as it sees fit and that selective
application of new rules violates the principle of treating
similarly situated parties the same,
id., at 322, 323-the
Court prohibits the erection of selective temporal barriers to the
application of federal law in noncriminal cases. When the Court
does not reserve the question whether its holding should be applied
to the parties before it, the opinion is properly understood to
have followed the normal rule of retroactive application,
Beam, 501 U. S., at 540 (opinion of SOUTER, J.), and the
legal imperative to apply such a rule prevails "over any claim
based on a
Chevron Oil analysis,"
ibid. Pp.
94-98.
(b) This Court applied the rule of law announced in
Davis
to the parties before the Court. The Court's response to Michigan's
concession that a refund would be appropriate in
Davis, far
from reserving the retroactivity question, constituted a
retroactive application of the rule. A decision to accord solely
prospective effect to
Davis would have foreclosed any
discussion of remedial issues. Pp. 98-99.
2. The decision below does not rest on independent and adequate
state-law grounds. In holding that state-law retroactivity doctrine
permitted the solely prospective application of the ruling, the
State Supreme Court simply incorporated into state law the analysis
of
Chevron Oil and criminal retroactivity cases overruled by
Griffith. The Supremacy Clause, however, does not allow
federal retroactivity doctrine to be supplanted by the invocation
of a contrary approach to retroactivity under state law. Similarly,
the state court's conclusion that the challenged assessments were
not erroneous or improper under state law rested solely on its
determination that
Davis did not apply retroactively. pp.
99-100.
3. Virginia is free to choose the form of relief it will
provide, so long as that relief is consistent with federal due
process principles. A State retains flexibility in responding to
the determination that it has imposed an impermissibly
discriminatory tax. The availability of a predeprivation hearing
constitutes a procedural safeguard sufficient to satisfy due
process, but if no such relief exists, the State must provide
meaningful backward-looking relief either by awarding full refunds
or by issuing some other order that creates in hindsight a
nondiscriminatory scheme. Since any remedy's constitutional
sufficiency turns (at least initially) on whether Virginia law
provides an adequate form of predeprivation proc-
88
ess, and since that issue has not been properly presented, this
question and the performance of other tasks pertaining to the
crafting of an appropriate remedy are left to the Virginia courts.
Pp. 100-102.
242 Va. 322, 410 S. E. 2d 629, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which
BLACKMUN, STEVENS, SCALIA, and SOUTER, JJ., joined, and in Parts I
and III of which WHITE and KENNEDY, JJ., joined. SCALIA, J., filed
a concurring opinion,
post, p. 102. KENNEDY, J., filed an
opinion concurring in part and concurring in the judgment, in which
WHITE, J., joined,
post, p. 110. O'CONNOR, J., filed a
dissenting opinion, in which REHNQUIST, C. J., joined,
post,
p. 113.
Michael J. Kator argued the cause and filed
the briefs for petitioners.
Gail Starling Marshall argued the cause for
respondent.
With her on the brief were
Mary Sue Terry, Attorney
General of Virginia,
Stephen D. Rosenthal, Chief Deputy
Attorney General,
Gregory E. Lucyk and N.
Pendleton
Rogers, Senior Assistant Attorneys General,
Barbara H.
Vann, Assistant Attorney General, and
Peter W Low.
*
*Briefs of
amici curiae urging affirmance were filed for
the State of Arkansas by
Winston Bryant, Attorney General of
Arkansas, and
Joyce Kinkead; for the State of Georgia by
Michael J. Bowers, Attorney General of
Georgia, and
Warren R. Calvert and
Daniel M. Formby,
Senior Assistant Attorneys General; for the State of North Carolina
et al. by
Lacy H. Thornburg, Attorney General of North
Carolina,
Edwin M. Speas, Jr., Senior Deputy Attorney
General,
H. Jefferson Powell, Norma S.
Harrell and
Thomas F.
Moffitt, Special Deputy Attorneys General,
Marilyn R. Mudge, Assistant Attorney General,
Grant
Woods, Attorney General of Arizona,
Rebecca White Berch,
and
Gail H. Boyd, Assistant Attorney General; for the State
of Utah et al. by
Paul Van Dam, Attorney General of Utah,
Leon A. Dever, Assistant Attorney General,
James H.
Evans, Attorney General of Alabama,
Charles E. Cole,
Attorney General of Alaska,
Tautai A. F.
Fa'Alevao,
Attorney General of American Samoa,
Daniel E. Lungren,
Attorney General of California,
Richard Blumenthal, Attorney
General of Connecticut,
Charles M. Oberly III, Attorney
General of Delaware,
John Payton, Corporate Counsel of the
District of Columbia,
Warren Price III, Attorney General of
Hawaii,
Larry EchoHawk, Attorney General of Idaho,
Roland
W Burris, Attorney General of Illinois,
Linley E.
Pearson, Attorney General of Indiana,
Bonnie J.
Campbell, Attorney General of Iowa,
Chris Gorman,
Attorney General of Kentucky,
Michael
89
JUSTICE THOMAS delivered the opinion of the Court.
In
Davis v.
Michigan Dept. of Treasury, 489 U. S. 803 (1989), we
held that a State violates the constitutional doctrine of
intergovernmental tax immunity when it taxes retirement benefits
paid by the Federal Government but exempts from taxation all
retirement benefits paid by the State or its political
subdivisions. Relying on the retroactivity analysis of
Chevron
Oil Co. v.
Huson, 404 U. S. 97 (1971), the
Supreme Court of Virginia twice refused to apply
Davis
to
E. Carpenter, Attorney General of Maine,
J.
Joseph Curran, Jr., Attorney General of Maryland,
Scott
Harshbarger, Attorney General of Massachusetts,
Frank
J. Kelley, Attorney General of Michigan,
Hubert H.
Humphrey III, Attorney General of Minnesota,
Michael C.
Moore, Attorney General of Mississippi,
Marc Racicot,
Attorney General of Montana,
Don Stenberg, Attorney General
of Nebraska,
Frankie Sue Del Papa, Attorney General of
Nevada,
John P. Arnold, Attorney General of New Hampshire,
Robert J. Del Tufo, Attorney General of New
Jersey,
Tom Udall, Attorney General of New Mexico,
Robert
Abrams, Attorney General of New York,
Lee Fisher,
Attorney General of Ohio,
Susan B. Loving, Attorney General
of Oklahoma,
Charles S.
Crookham, Attorney General of
Oregon,
Ernest D. Preate, Jr., Attorney General of
Pennsylvania,
Jorge Perez-Diaz, Attorney General of Puerto
Rico,
James E. O'Neil, Attorney General of Rhode Island,
A. Crawford Clarkson, Jr., Mark Barnett, Attorney General of
South Dakota,
Charles W Burson, Attorney General of
Tennessee,
Dan Morales, Attorney General of Texas,
Jeffrey L. Amestoy, Attorney General of Vermont,
Rosalie
Simmonds Ballentine, Attorney General of the Virgin Islands,
Kenneth O.
Eikenberry, Attorney General of
Washington,
Mario J. Palumbo, Attorney General
of West Virginia,
Joseph B. Meyer, Attorney General of
Wyoming, and
James E. Doyle, Jr., Attorney General of
Wisconsin; for the city of New York by O.
Peter Sherwood,
Edward F.
X. Hart, and
Stanley Buchsbaum; and for
the National Governors' Association et al. by
Richard Ruda
and
Charles Rothfeld.
Briefs of amici curiae were filed for Designated Federal
Retirees in Kansas et al. by John C. Frieden, Kevin M. Fowler,
Kenton C. Granger, Roger M. Theis, Carrold E. Ray, G. Eugene Boyce,
Donald L. Smith, Edmund F. Sheehy, Jr., Brian A. Luscher, Gene M.
Connell, Jr., and
J. Doy le Fuller; for James B. Beam
Distilling Co. by Morton Siegel, Michael A. Moses, Richard G.
Schoenstadt, James L. Webster, and John L. Taylor, Jr.; for the
Military Coalition by Eugene Q Duffy; and for the Virginia
Manufacturers Association by Walter A. Smith, Jr.
90
taxes imposed before
Davis was decided. In accord with
Griffith v.
Kentucky, 479 U. S. 314 (1987), and
James B. Beam Distilling Co. v.
Georgia, 501 U. S. 529 (1991), we
hold that this Court's application of a rule of federal law to the
parties before the Court requires every court to give retroactive
effect to that decision. We therefore reverse.
I
The Michigan tax scheme at issue in
Davis "exempt[ed]
from taxation all retirement benefits paid by the State or its
political subdivisions, but levie[d] an income tax on retirement
benefits paid by ... the Federal Government." 489 U. S., at 805. We
held that the United States had not consented under 4 U. S. C. §
1111 to this discriminatory imposition of a heavier tax burden on
federal benefits than on state and local benefits. 489 U. S., at
808-817. Because Michigan "conceded that a refund [was]
appropriate," we recognized that federal retirees were entitled to
a refund of taxes "paid ... pursuant to this invalid tax scheme."
Id., at 817.2
Like Michigan, Virginia exempted state and local employees'
retirement benefits from state income taxation while taxing federal
retirement benefits. Va. Code Ann. § 58.1322(c)(3) (Supp. 1988). In
response to
Davis, Virginia repealed its exemption for state
and local government employees. 1989 Va. Acts, Special Sess. II,
ch. 3. It also enacted a special statute of limitations for refund
claims made in light of
Davis. Under this statute, taxpayers
may seek a refund
1 "The United States consents to the taxation of payor
compensation for personal service as an officer or employee of the
United States ... by a duly constituted taxing authority having
jurisdiction, if the taxation does not discriminate against the
officer or employee because of the source of the payor
compensation." 4 U. S. C. § 111.
2We have since followed
Davis and held that a State
violates intergovernmental tax immunity and 4 U. S. C. § 111 when
it "taxes the benefits received from the United States by military
retirees but does not tax the benefits received by retired state
and local government employees."
Barker v.
Kansas,
503 U. S. 594,
596 (1992).
91
of state taxes imposed on federal retirement benefits in 1985,
1986, 1987, and 1988 for up to one year from the date of the final
judicial resolution of whether Virginia must refund these taxes.
Va. Code Ann. § 58.1-1823(b) (Supp. 1992).3
Petitioners, 421 federal civil service and military retirees,
sought a refund of taxes "erroneously or improperly assessed" in
violation of
Davis' nondiscrimination principle. Va. Code
Ann. §58.1-1826 (1991). The trial court denied relief. Law No.
CL891080 (Va. Cir. Ct., Mar. 12, 1990). Applying the factors set
forth in
Chevron Oil Co. v.
Huson, supra, at
106-107,4 the court reasoned that
"Davis decided an issue of
first impression whose resolution was not clearly foreshadowed,"
that "prospective application of
Davis will not retard its
operation," and that "retroactive application would result in
inequity, injustice and hardship." App. to Pet. for Cert. 20a.
The Supreme Court of Virginia affirmed.
Harper v.
Virginia Dept. of Taxation, 241 Va. 232, 401 S. E. 2d 868
(1991). It too concluded, after consulting
Chevron and the
plurality opinion in
American Trucking Assns., Inc. v.
Smith, 496 U. S. 167 (1990), that "the
Davis decision
is not to be applied retroactively." 241 Va., at 240, 401 S. E. 2d,
at 873. The court also rejected petitioners' contention that
"refunds
3 Applications for tax refunds generally must be made within
three years of the assessment. Va. Code Ann. § 58.1-1825 (1991). As
of the date we decided
Davis, this statute of limitations
would have barred all actions seeking refunds from taxes imposed
before 1985.
4 "First, the decision to be applied nonretroactively must
establish a new principle of law, either by overruling clear past
precedent on which litigants may have relied, or by deciding an
issue of first impression whose resolution was not clearly
foreshadowed. Second, it has been stressed that 'we must ... weigh
the merits and demerits in each case by looking to the prior
history of the rule in question, its purpose and effect, and
whether retrospective operation will further or retard its
operation.' Finally, we have weighed the inequity imposed by
retroactive application .... "
Chevron Oil Co. v.
Huson, 404 U. S., at 106-107 (citations omitted).
92
[were] due as a matter of state law."
Ibid. It concluded
that "because the
Davis decision is not to be applied
retroactively, the
pre-Davis assessments were neither
erroneous nor improper" under Virginia's tax refund statute.
Id., at 241, 401 S. E. 2d, at 873. As a matter of Virginia
law, the court held, a "ruling declaring a taxing scheme
unconstitutional is to be applied prospectively only."
Ibid.
This rationale supplied "another reason" for refusing relief.
Ibid.
Even as the Virginia courts were denying relief to petitioners,
we were confronting a similar retroactivity problem in
James B.
Beam Distilling Co. v.
Georgia, 501 U. S. 529 (1991). At
issue was
Bacchus Imports, Ltd. v.
Dias, 468 U. S.
263 (1984), which prohibited States from imposing higher excise
taxes on imported alcoholic beverages than on local products. The
Supreme Court of Georgia had used the analysis described in
Chevron Oil Co. v.
Huson to deny retroactive effect
to a decision of this Court. Six Members of this Court disagreed,
concluding instead that
Bacchus must be applied
retroactively to claims arising from facts predating that decision.
Beam, 501 U. S., at 532 (opinion of SouTER, J.);
id.,
at 544-545 (WHITE, J., concurring in judgment);
id., at
547-548 (BLACKMUN, J., concurring in judgment);
id., at
548-549 (SCALIA, J., concurring in judgment). After deciding
Beam, we vacated the judgment in
Harper and remanded
for further consideration. 501 U. S. 1247 (1991).
On remand, the Supreme Court of Virginia again denied tax
relief. 242 Va. 322, 410 S. E. 2d 629 (1991). It reasoned that
because Michigan did not contest the
Davis plaintiffs'
entitlement to a refund, this Court "made no ... ruling" regarding
the retroactive application of its rule "to the litigants in that
case." 242 Va., at 326, 410 S. E. 2d, at 631. Concluding that
Beam did not foreclose application of
Chevron's
retroactivity analysis because "the retroactivity issue was not
decided in
Davis," 242 Va., at 326, 410 S. E. 2d, at
93
631, the court "reaffirm[ed] [its] prior decision in all
respects,"
id., at 327, 410 S. E. 2d, at 632.
When we decided
Davis, 23 States gave preferential tax
treatment to benefits received by employees of state and local
governments relative to the tax treatment of benefits received by
federal employees.5 Like the Supreme Court of Virginia, several
other state courts have refused to accord full retroactive effect
to
Davis as a controlling statement of federallaw.6 Two of
the courts refusing to apply
Davis retroactively have done
so after this Court remanded for reconsideration in light of
Beam. See
Bass v.
South Carolina, 501 U. S.
1246 (1991);
Harper v.
Virginia Dept. of Taxation,
501 U. S. 1247 (1991);
Lewy v.
Virginia Dept. of
Taxation, decided with
Harper v.
Virginia Dept. of
Taxation, 501 U. S. 1247 (1991). By contrast, the Supreme Court
of Arkansas has concluded as a matter of federal law that
Davis applies retroactively.
Pledger v.
Bosnick, 306 Ark. 45, 54-56, 811 S. W. 2d 286, 292-293
(1991), cert. pending, No. 91-375. Cf.
Reich v.
Collins, 262 Ga. 625, 422 S. E. 2d 846 (1992)
5 E. g., Ala. Code §36-27-28 (1991), Ala.
Code §40-18-19 (1985); Iowa Code § 97A.12 (1984), repealed, 1989
Iowa Acts, ch. 228, § 10 (repeal retroactive to Jan. 1, 1989); La.
Rev. Stat. Ann. §47:44.1 (West Supp. 1990); Miss. Code Ann.
§25-11-129 (1972); Mo. Rev. Stat. §86.190 (1971), Mo. Rev. Stat. §
104.540 (1989); Mont. Code Ann. § 15-30-111(2) (1987); N. Y. Tax
Law § 612(c)(3) (McKinney 1987); Utah Code Ann. § 49-1-608 (1989).
See generally
Harper v.
Virginia Dept. of Taxation,
241 Va. 232, 237, n. 2, 401
6 Bohn v.
Waddell, 167 Ariz. 344, 349, 807
P. 2d 1, 6 (Tax Ct. 1991);
Sheehy v.
State, 250 Mont.
437, 820 P. 2d 1257 (1991), cert. pending, No.
91-1473;
Duffy v.
Wetzler, 174 App. Div. 2d 253, 265, 579 N. Y.
S. 2d 684, 691, appeal denied, 80 N. Y. 2d 890, 600 N. E. 2d 627
(1992), cert. pending, No. 92-521;
Swanson v.
State,
329 N. C. 576, 581-584, 407 S. E. 2d 791, 793-795 (1991), aff'd on
reh'g, 330 N. C. 390, 410 S. E. 2d 490 (1991), cert. pending, No.
91-1436;
Ragsdale v.
Department of Revenue, 11 Ore.
Tax 440 (1990), aff'd on other grounds, 312 Ore. 529, 823 P. 2d 971
(1992);
Bass v.
State, 307 S. C. 113, 121-122,414 S.
E. 2d 110, 114-115 (1992), cert. pending, No. 91-1697.
94
(holding that
Davis applies retroactively but reasoning
that state law precluded a refund), cert. pending, Nos. 92-1276 and
92-1453.7
After the Supreme Court of Virginia reaffirmed its original
decision, we granted certiorari a second time. 504 U. S. 907
(1992). We now reverse.
II
"[B]oth the common law and our own decisions" have "recognized a
general rule of retrospective effect for the constitutional
decisions of this Court."
Robinson v.
Neil, 409 U. S.
505, 507 (1973). Nothing in the Constitution alters the fundamental
rule of "retrospective operation" that has governed "[j]udicial
decisions ... for near a thousand years."
Kuhn v.
Fairmont Coal Co., 215 U. S. 349, 372 (1910)
(Holmes, J., dissenting). In
Linkletter v.
Walker,
381 U. S. 618
(1965), however, we developed a doctrine under which we could deny
retroactive effect to a newly announced rule of criminal law. Under
Linkletter, a decision to confine a new rule to prospective
application rested on the purpose of the new rule, the reliance
placed upon the previous view of the law, and "the effect on the
administration of justice of a retrospective application" of the
new rule.
Id., at 636 (limiting
Mapp v.
Ohio,
367 U. S. 643
(1961)).8 In the civil context, we similarly permitted the denial
of retroactive effect to "a new principle of law" if such a
limitation would avoid" 'injustice or hardship' " without unduly
undermining the "purpose
7 Several other state courts have ordered refunds as a matter of
state law in claims based on
Davis. See,
e.
g., Kuhn v.
State, 817 P. 2d 101, 109-110
(Colo. 1991);
Hackman v.
Director of Revenue, 771 S.
W. 2d 77, 80-81 (Mo. 1989), cert. denied, 493 U. S. 1019
(1990).
8 Accord,
e. g., Tehan v.
United States
ex rel. Shott, 382 U. S. 406 (1966)
(limiting
Griffin v.
California, 380 U. S. 609 (1965));
Johnson v.
New Jersey, 384 U. S. 719 (1966)
(limiting
Escobedo v.
Illinois, 378 U. S. 478 (1964), and
Miranda v.
Arizona, 384 U. S. 436 (1966));
Stovall v.
Denno, 388 U. S. 293 (1967)
(limiting
United States v.
Wade, 388 U. S. 218 (1967), and
Gilbert v.
California, 388 U. S. 263
(1967)).
95
and effect" of the new rule. Chevron Oil Co. v. Huson, 404 U.
S., at 106-107 (quoting Cipriano v. City of Houma,
395 U. S. 701, 706
(1969)).9
We subsequently overruled
Linkletter in
Griffith
v.
Kentucky, 479 U. S. 314 (1987), and
eliminated limits on retroactivity in the criminal context by
holding that all "newly declared ... rule[s]" must be applied
retroactively to all "criminal cases pending on direct review."
Id., at 322. This holding rested on two "basic norms of
constitutional adjudication."
Ibid. First, we reasoned that
"the nature of judicial review" strips us of the quintessentially
"legislat[ive]" prerogative to make rules of law retroactive or
prospective as we see fit.
Ibid. Second, we concluded that
"selective application of new rules violates the principle of
treating similarly situated [parties] the same."
Id., at
323.
Dicta in
Griffith, however, stated that "civil
retroactivity .... continue[d] to be governed by the standard
announced in
Chevron Oil." Id., at 322, n. 8. We divided
over the meaning of this dicta in
American Trucking Assns.,
Inc. v.
Smith, 496 U. S. 167 (1990). The
four Justices in the plurality used "the
Chevron Oil test"
to consider whether to confine "the application of
[American
Trucking Assns., Inc. v.
Scheiner, 483 U. S. 266 (1987),] to
taxation of highway use prior to June 23, 1987, the date we decided
Scheiner." Id.,
9We need not debate whether
Chevron Oil represents a true
"choice-oflaw principle" or merely "a remedial principle for the
exercise of equitable discretion by federal courts."
American
Trucking Assns., Inc. v.
Smith, 496 U. S. 167, 220 (1990)
(STEVENS, J., dissenting). Compare
id., at 191197 (plurality
opinion) (treating
Chevron Oil as a choice-of-Iaw rule),
with
id., at 218-224 (STEVENS, J., dissenting) (treating
Chevron Oil as a remedial doctrine). Regardless of how
Chevron Oil is characterized, our decision today makes it
clear that "the
Chevron Oil test cannot determine the choice
of law by relying on the equities of the particular case" and that
the federal law applicable to a particular case does not turn on
"whether [litigants] actually relied on [an] old rule [or] how they
would suffer from retroactive application" of a new one.
James
B. Beam Distilling Co. v.
Georgia, 501 U. S. 529, 543 (1991)
(opinion of SOUTER, J.).
96
at 179 (opinion of O'CONNOR, J., joined by REHNQUIST, C. J., and
WHITE and KENNEDY, JJ.). Four other Justices rejected the
plurality's "anomalous approach" to retroactivity and declined to
hold that "the law applicable to a particular case is that law
which the parties believe in good faith to be applicable to the
case."
Id., at 219 (STEVENS, J., dissenting, joined by
Brennan, Marshall, and BLACKMUN, JJ.). Finally, despite concurring
in the judgment, JUSTICE SCALIA "share[d]" the dissent's
"perception that prospective decisionmaking is incompatible with
the judicial role."
Id., at 20l.
Griffith and
American Trucking thus left
unresolved the precise extent to which the presumptively
retroactive effect of this Court's decisions may be altered in
civil cases. But we have since adopted a rule requiring the
retroactive application of a civil decision such as
Davis.
Although
James B. Beam Distilling Co. v.
Georgia,
501 U. S. 529
(1991), did not produce a unified opinion for the Court, a majority
of Justices agreed that a rule of federal law, once announced and
applied to the parties to the controversy, must be given full
retroactive effect by all courts adjudicating federal law. In
announcing the judgment of the Court, JUSTICE SOUTER laid down a
rule for determining the retroactive effect of a civil decision:
After the case announcing any rule of federal law has "appl[ied]
that rule with respect to the litigants" before the court, no court
may "refuse to apply [that] rule ... retroactively."
Id., at
540 (opinion of SOUTER, J., joined by STEVENS, J.). JUSTICE
SOUTER'S view of retroactivity superseded "any claim based on a
Chevron Oil analysis."
Ibid. JUSTICE WHITE likewise
concluded that a decision "extending the benefit of the judgment"
to the winning party "is to be applied to other litigants whose
cases were not final at the time of the [first] decision."
Id., at 544 (opinion concurring in judgment). Three other
Justices agreed that "our judicial responsibility ... requir[es]
retroactive application of each ... rule we announce."
Id.,
at 548 (BLACKMUN, J.,
97
joined by Marshall and SCALIA, JJ., concurring in judgment). See
also
id., at 548-549 (SCALIA, J., joined by Marshall and
BLACKMUN, JJ., concurring in judgment).
Beam controls this case, and we accordingly adopt a rule
that fairly reflects the position of a majority of Justices in
Beam: 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
still open on direct review and as to all events, regardless of
whether such events predate or postdate our announcement of the
rule. This rule extends
Griffith's ban against "selective
application of new rules." 479 U. S., at 323. Mindful of the "basic
norms of constitutional adjudication" that animated our view of
retroactivity in the criminal context,
id., at 322, we now
prohibit the erection of selective temporal barriers to the
application of federal law in noncriminal cases. In both civil and
criminal cases, we can scarcely permit "the substantive law [to]
shift and spring" according to "the particular equities of
[individual parties'] claims" of actual reliance on an old rule and
of harm from a retroactive application of the new rule.
Beam,
supra, at 543 (opinion of SOUTER, J.). Our approach to
retroactivity heeds the admonition that "[t]he Court has no more
constitutional authority in civil cases than in criminal cases to
disregard current law or to treat similarly situated litigants
differently."
American Trucking, supra, at 214 (STEVENS, J.,
dissenting).
The Supreme Court of Virginia "appl[ied] the threepronged
Chevron Oil test in deciding the retroactivity issue"
presented by this litigation. 242 Va., at 326, 410 S. E. 2d, at
631. When this Court does not "reserve the question whether its
holding should be applied to the parties before it," however, an
opinion announcing a rule of federal law "is properly understood to
have followed the normal rule of retroactive application" and must
be "read to hold ... that its rule should apply retroactively to
the litigants then before
98
the Court."
Beam, 501 U. S., at 539 (opinion of SOUTER,
J.). Accord,
id., at 544-545 (WHITE, J., concurring in
judgment);
id., at 550 (O'CONNOR, J., dissenting).
Furthermore, the legal imperative "to apply a rule of federal law
retroactively after the case announcing the rule has already done
so" must "prevai[l] over any claim based on a
Chevron Oil
analysis."
Id., at 540 (opinion of SOUTER, J.).
In an effort to distinguish
Davis, the Supreme Court of
Virginia surmised that this Court had "made no ... ruling" about
the application of the rule announced in
Davis
"retroactively to the litigants in that case." 242 Va., at 326, 410
S. E. 2d, at 631. "[B]ecause the retroactivity issue was not
decided in
Davis," the court believed that it was "not
foreclosed by precedent from applying the three-pronged
Chevron
Oil test in deciding the retroactivity issue in the present
case."
Ibid.
We disagree.
Davis did not hold that preferential state
tax treatment of state and local employee pensions, though
constitutionally invalid in the future, should be upheld as to all
events predating the announcement of
Davis. The governmental
appellee in
Davis "conceded that a refund [would have been]
appropriate" if we were to conclude that "the Michigan Income Tax
Act violate[d] principles of intergovernmental tax immunity by
favoring retired state and local governmental employees over
retired federal employees." 489 U. S., at 817. We stated that "to
the extent appellant has paid taxes pursuant to this invalid tax
scheme, he is entitled to a refund."
Ibid. Far from
reserving the retroactivity question, our response to the
appellee's concession constituted a retroactive application of the
rule announced in
Davis to the parties before the Court.
Because a decision to accord solely prospective effect to
Davis would have foreclosed any discussion of remedial
issues, our "consideration of remedial issues" meant "necessarily"
that we retroactively applied the rule we announced in
Davis
to the litigants before us.
Beam, supra, at 539 (opinion of
SOUTER, J.).
99
Therefore, under
Griffith, Beam, and the retroactivity
approach we adopt today, the Supreme Court of Virginia must apply
Davis in petitioners' refund action.
III
Respondent Virginia Department of Taxation defends the judgment
below as resting on an independent and adequate state ground that
relieved the Supreme Court of Virginia of any obligation to apply
Davis to events occurring before our announcement of that
decision. Petitioners had contended that "even if the
Davis
decision applie[d] prospectively only," they were entitled to
relief under Virginia's tax refund statute, Va. Code Ann.
§58.1-1826 (1991).
Harper v.
Virginia Dept. of
Taxation, 241 Va., at 241, 401 S. E. 2d, at 873. The Virginia
court rejected their argument. It first reasoned that because
Davis did not apply retroactively, tax assessments predating
Davis were "neither erroneous nor improper within the
meaning" of Virginia's tax statute.
Ibid. The court then
offered "another reason" for rejecting petitioners' "state-law
contention": "We previously have held that this Court's ruling
declaring a taxing scheme unconstitutional is to be applied
prospectively only."
Ibid. (citing
Perkins v.
Albemarle County, 214 Va. 240,198 S. E. 2d 626, aff'd and
modified on rehearing, 214 Va. 416, 200 S. E. 2d 566
(1973);
Capehart v.
City of Chesapeake, No. 5459 (Va. Cir. Ct.,
Oct. 16, 1974), appeal denied, 215 Va. xlvii, cert. denied, 423 U.
S. 875 (1975)). The formulation of this state-law retroactivity
doctrine-that "consideration should be given to the purpose of the
new rule, the extent of the reliance on the old rule, and the
effect on the administration of justice of a retroactive
application of the new rule,"
Fountain v.
Fountain,
214 Va. 347, 348, 200 S. E. 2d 513, 514 (1973), cert. denied, 416
U. S. 939 (1974), quoted in 241 Va., at 241, 401 S. E. 2d, at
874-suggests that the Supreme Court of Virginia has simply
incorporated into state law the threepronged analysis of
Chevron
Oil, 404 U. S., at 106-107, and
100
the criminal retroactivity cases overruled by
Griffith,
see,
We reject the department's defense of the decision below.
The Supremacy Clause, U. S. Const., Art. VI, cl. 2, does not
allow federal retroactivity doctrine to be supplanted by the
invocation of a contrary approach to retroactivity under state law.
Whatever freedom state courts may enjoy to limit the retroactive
operation of their own interpretations of state law, see
Great
Northern R. Co. v.
Sunburst Oil & Refining
Co., 287 U. S.
358, 364-366 (1932), cannot extend to their interpretations of
federal law. See
National Mines Corp. v.
Caryl,
497 U. S. 922,
923 (1990)
(per curiam); Ashland Oil, Inc. v.
Caryl,
497 U. S. 916,
917 (1990)
(per curiam).
We also decline the Department of Taxation's invitation to
affirm the judgment as resting on the independent and adequate
ground that Virginia's law of remedies offered no "retrospective
refund remedy for taxable years concluded before
Davis" was
announced. Brief for Respondent 33. The Virginia Supreme Court's
conclusion that the challenged tax assessments were "neither
erroneous nor improper within the meaning" of the refund statute
rested solely on the court's determination that
Davis did
not apply retroactively.
Harper v.
Virginia Dept. of
Taxation, supra, at 241, 401
Because we have decided that
Davis applies retroactively
to the tax years at issue in petitioners' refund action, we reverse
the judgment below. We do not enter judgment for petitioners,
however, because federal law does not necessarily entitle them to a
refund. Rather, the Constitution requires Virginia "to provide
relief consistent with federal due process principles."
American
Trucking, 496 U. S., at 181 (plurality opinion). Under the Due
Process Clause, U. S. Const., Amdt. 14, § 1, "a State found to have
imposed an impermissibly discriminatory tax retains flexibility in
responding to this determination."
McKesson Corp. v.
Division of
101
Alcoholic Beverages and Tobacco, Fla. Dept. of Business
Regulation, 496 U.
S. 18, 39-40 (1990). If Virginia "offers a meaningful
opportunity for taxpayers to withhold contested tax assessments and
to challenge their validity in a predeprivation hearing," the
"availability of a predeprivation hearing constitutes a procedural
safeguard ... sufficient by itself to satisfy the Due Process
Clause."
Id., at 38, n. 21. On the other hand, if no such
predeprivation remedy exists, "the Due Process Clause of the
Fourteenth Amendment obligates the State to provide meaningful
backward-looking relief to rectify any unconstitutional
deprivation."
Id., at 31 (footnotes omitted).lO In providing
such relief, a State may either award full refunds to those
burdened by an unlawful tax or issue some other order that
"create[s] in hindsight a nondiscriminatory scheme."
Id., at
40. Cf.
Davis, 489 U. S., at 818 (suggesting that a State's
failure to respect intergovernmental tax immunity could be cured
"either by extending [a discriminatory] tax exemption to retired
federal employees ... or by eliminating the exemption for retired
state and local government employees").
The constitutional sufficiency of any remedy thus turns (at
least initially) on whether Virginia law "provide[s] a[n]
[adequate] form of 'predeprivation process,' for example, by
authorizing taxpayers to bring suit to enjoin imposition of a
tax
10 A State incurs this obligation when it "places a taxpayer
under duress promptly to pay a tax when due and relegates him to a
postpayment refund action in which he can challenge the tax's
legality."
McKesson, 496 U. S., at 31. A State that
"establish[es] various sanctions and summary remedies designed" to
prompt taxpayers to "tender ... payments
before their
objections are entertained and resolved" does not provide taxpayers
"a meaningful opportunity to withhold payment and to obtain a
predeprivation determination of the tax assessment's validity."
Id., at 38 (emphasis in original). Such limitations impose
constitutionally significant" 'duress'" because a tax payment
rendered under these circumstances must be treated as an effort "to
avoid financial sanctions or a seizure of real or personal
property."
Id., at 38, n. 21. The State accordingly may not
confine a taxpayer under duress to prospective relief.
102
prior to its payment, or by allowing taxpayers to withhold
payment and then interpose their objections as defenses in a tax
enforcement proceeding."
McKesson, 496 U. S., at 3637.
Because this issue has not been properly presented, we leave to
Virginia courts this question of state law and the performance of
other tasks pertaining to the crafting of any appropriate remedy.
Virginia "is free to choose which form of relief it will provide,
so long as that relief satisfies the minimum federal requirements
we have outlined."
Id., at 51-52. State law may provide
relief beyond the demands of federal due process,
id., at
52, n. 36, but under no circumstances may it confine petitioners to
a lesser remedy, see
id., at 44-51.
IV
We reverse the judgment of the Supreme Court of Virginia, and we
remand the case for further proceedings not inconsistent with this
opinion.
So ordered.
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.
103
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. 680, 717 (1993) (SCALIA, J., concurring in part and
dissenting in part), 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 111 (KENNEDY, J., concurring in
part and concurring in judgment), two find it not retroactive, see
post, at 122 (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).
104
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
Bey tagh,
supra, at 1606. Thus, after
Griffith, Chevron
Oil can be adhered to
only by rejecting the reasoning of
Chevron Oilthat 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") .1
1 The dissent attempts to distinguish between retroactivity in
civil and criminal settings on three grounds, none of which has
ever been adopted by this Court. The dissent's first argument
begins with the observation that "nonretroactivity in criminal
cases historically has favored the government's reliance interests
over the rights of criminal defend-
105
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,
ants."
Post, at 121. But while it is true that
prospectivity was usually employed in the past (during the brief
period when it was used in criminal cases) to favor the government,
there is no basis for the implicit suggestion that it would usually
favor the government in the future. That phenomenon was a
consequence, not of the nature of the doctrine, cf.
James v.
United States, 366 U. S. 213 (1961), but
of the historical "accident" that during the period prospectivity
was in fashion legal rules favoring the government were more
frequently overturned. But more fundamentally, to base a rule of
full retroactivity in the criminal-law area upon what the dissent
calls "the generalized policy of favoring individual rights over
governmental prerogative,"
post, at 121, makes no more sense
than to adopt, because of the same "generalized policy," a
similarly gross rule that no decision favoring criminal defendants
can ever be overruled. The law is more discerning than that. The
dissent's next argument is based on the dubious empirical
assumption that civil litigants, but not criminal defendants, will
often receive some benefit from a prospective decision. That
assumption does not hold even in this case: Prospective
invalidation of Virginia's taxing scheme would afford petitioners
the enormous future "benefit,"
ibid., of knowing that others
in the State are being taxed more. But empirical problems aside,
the dissent does not explain why, if a receipt-of-some-benefit
principle is important, we should use such an inaccurate proxy as
the civil/criminal distinction, or how this newly discovered
principle overcomes the "basic norms of constitutional
adjudication" on which
Griffith v.
Kentucky, 479 U. S. 314, 322
(1987), rested. Finally, the dissent's "equal treatment" argument
ably distinguishes between cases in which a prospectivity claim is
properly raised, and those in which it is not. See
post, at
122. But that does nothing to distinguish between civil and
criminal cases; obviously, a party may procedurally default on a
claim in either context.
106
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 113, 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 unancient
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 94;
James B. Beam Distilling Co. v.
Georgia, 501
U. S. 529, 534 (1991) (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 115 (quoting
Beam, supra, at 550 (O'CONNOR, J., dissenting)). That
concept is quite foreign to the American legal and con-
107
stitutional 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. 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 disre-
108
gard 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
109
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.2
In sum, I join the opinion of the Court because the doctrine of
prospective decisionmaking is not in fact protected
2 Contrary to the suggestion in the dissent, I am not arguing
that we should "cast overboard our
entire retroactivity
doctrine with ... [an] unceremonious heave-ho."
Post, at 116
(emphasis added; internal quotation marks omitted). There is no
need. We cast over the first half six Terms ago in
Griffith,
and deep-sixed most of the rest two Terms ago in
James B. Beam
Distilling Co. v.
Georgia, 501 U. S. 529 (1991)-in
neither case unceremoniously (in marked contrast to some of the
overrulings cited in text). What little, if any, remains is
teetering at the end of the plank and needs no more than a gentle
nudge. But if the entire doctrine had been given a quick and
unceremonious end, there could be no complaint on the grounds of
stare decisis; as it was born, so should it die. I do not
know the basis for the dissent's contention that I find the
jurisprudence of the era that produced the doctrine of
prospectivity "distasteful."
Post, at 116. Much of it is
quite appetizing. It is only the cavalier treatment of
stare
decisis and the invention of prospectivity that I have
criticized here.
110
by our flexible rule of
stare decisis; and because no
friend of
stare decisis would want it to be.
JUSTICE KENNEDY, with whom JUSTICE WHITE joins, concurring in
part and concurring in the judgment.
I remain of the view that it is sometimes appropriate in the
civil context to give only prospective application to a judicial
decision. "[P]rospective overruling allows courts to respect the
principle of
stare decisis even when they are impelled to
change the law in light of new understanding."
American Trucking
Assns., Inc. v.
Smith, 496 U. S. 167, 197 (1990)
(plurality opinion). When a court promulgates a new rule of law,
prospective application functions "to avoid injustice or hardship
to civil litigants who have justifiably relied on prior law."
Id., at 199 (internal quotation marks omitted). See
Phoenix v.
Kolodziejski, 399 U. S. 204, 213-215
(1970); Cipriano v.
City of Houma, 395 U. S. 701, 706 (1969)
(per curiam); England v.
Louisiana Bd. of Medical
Examiners, 375 U.
S. 411, 422 (1964). And in my view retroactivity in civil cases
continues to be governed by the standard announced in
Chevron
Oil Co. v.
Huson, 404 U. S. 97,106-107
(1971). Thus, for the reasons explained by JUSTICE O'CONNOR,
post, at 113-117, I cannot agree with the Court's broad
dicta,
ante, at 95-97, that appears to embrace in the civil
context the retroactivity principles adopted for criminal cases in
Griffith v.
Kentucky, 479 U. S. 314 (1987). As
JusTICE O'CONNOR has demonstrated elsewhere, the differences
between the civil and criminal contexts counsel strongly against
adoption of
Griffith for civil cases. See
American
Trucking Assns., Inc. v.
Smith, supra, at 197-199. I
also cannot accept the Court's conclusion,
ante, at 96-99,
which is based on JUSTICE SOUTER'S opinion in
James B. Beam
Distilling Co. v.
Georgia, 501 U. S. 529, 540-543
(1991), that a decision of this Court must be applied in a
retroactive manner simply because the rule of law there announced
happened to be applied to the parties then before the Court.
111
See
post, at 117-122 (O'CONNOR, J., dissenting);
James
B. Beam Distilling Co. v.
Georgia, supra, at 550-552
(O'CONNOR, J., dissenting). For these reasons, I do not join Part
II of the Court's opinion.
I nonetheless agree with the Court that
Davis v.
Michigan Dept. of Treasury, 489 U. S. 803 (1989),
must be given retroactive effect. The first condition for
prospective application of any decision is that it must announce a
new rule of law.
Ashland Oil, Inc. v.
Caryl, 497 U. S. 916, 918 (1990)
(per curiam); American Trucking Assns., Inc. v.
Smith,
supra, at 179;
United States v.
Johnson, 457 U. S. 537, 550, n. 12
(1982); Chevron Oil Co. v.
Huson, 404 U. S.,
at 106-107. The decision must "overrul[e] clear past precedent on
which litigants may have relied" or "decid[e] an issue of first
impression whose resolution was not clearly foreshadowed."
Id., at 106. Because
Davis did neither, it did not
announce new law and therefore must be applied in a retroactive
manner.
Respondent argues that two new principles of law were
established in
Davis. First, it points to the holding that 4
U. S. C. § 111, in which the United States consents to state
taxation of the compensation of "an officer or employee of the
United States," applies to federal retirees as well as current
federal employees. Brief for Respondent 16-18. See
Davis,
489 U. S., at 808-810. In
Davis, however, we indicated that
this holding was "dictate[d]" by "the plain language of the
statute,"
id., at 808, and we added for good measure our
view that the language of the statute was "unambiguous,"
"unmistakable," and "leaves no room for doubt,"
id., at 809,
n. 3, 810. Given these characterizations, it is quite implausible
to contend that in this regard
Davis decided "an issue of
first impression whose resolution was not clearly foreshadowed."
Chevron Oil, supra, at 106.
The second new rule respondent contends the Court announced in
Davis was that the state statute at issue discriminated
against federal retirees even though the statute treated them like
all other state taxpayers except state em-
112
ployees. Brief for Respondent 18-26. See
Davis, supra, at
814,815, n. 4. The
Davis Court, however, anchored its
decision in precedent. We observed that in
Phillips Chemical
Co. v.
Dumas Independent School Dist., 361 U. S. 376 (1960), "we
faced thee] precise situation" confronting us in
Davis, and
so
Phillips Chemical controlled our holding. 489 U. S., at
815, n. 4. To be sure, JUSTICE STEVENS in dissent disagreed with
these contentions and attempted to distinguish
Phillips
Chemical. 489 U. S., at 824-826. The Court, however, was not
persuaded at the time, and I remain convinced that the Court had
the better reading of
Phillips Chemical. A contrary holding
in
Davis, in my view, would have created a clear
inconsistency in our jurisprudence. Under
Chevron Oil,
application of precedent which directly controls is not the stuff
of which new law is made.
Far from being "revolutionary,"
Ashland Oil Co. v.
Caryl, supra, at 920, or "an avulsive change which caused
the current of the law thereafter to flow between new banks,"
Hanover Shoe, Inc. v.
United Shoe Machinery
Co., 392 U. S.
481, 499 (1968),
Davis was a mere application of plain
statutory language and existing precedent. In these circumstances,
this Court is not free to mitigate any financial hardship that
might befall Virginia's taxpayers as a result of their state
government's failure to reach a correct understanding of the
unambiguous dictates of federal law.
Because I do not believe that
Davis v.
Michigan Dept.
of Treasury, supra, announced a new principle of law, I have no
occasion to consider JUSTICE O'CONNOR'S argument,
post, at
131-136, that equitable considerations may inform the formulation
of remedies when a new rule is announced. In any event, I do not
read Part III of the Court's opinion as saying anything
inconsistent with what JUSTICE O'CONNOR proposes.
On this understanding, I join Parts I and III of the Court's
opinion and concur in its judgment.
113
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE joins,
dissenting.
Today the Court applies a new rule of retroactivity to impose
crushing and unnecessary liability on the States, precisely at a
time when they can least afford it. Were the Court's decision the
product of statutory or constitutional command, I would have no
choice but to join it. But nothing in the Constitution or statute
requires us to adopt the retroactivity rule the majority now
applies. In fact, longstanding precedent requires the opposite
result. Because I see no reason to abandon our traditional
retroactivity analysis as articulated in
Chevron Oil Co. v.
Huson, 404 U.
S. 97, 106107 (1971), and because I believe the Supreme Court
of Virginia correctly applied
Chevron Oil in this case, I
would affirm the judgment below.
I
This Court's retroactivity jurisprudence has become somewhat
chaotic in recent years. Three Terms ago, the case of
American
Trucking Assns., Inc. v.
Smith, 496 U. S. 167 (1990),
produced three opinions, none of which garnered a majority. One
Term later,
James B. Beam Distilling Co. v.
Georgia,
501 U. S. 529
(1991), yielded five opinions; there, no single writing carried
more than three votes. As a result, the Court today finds itself
confronted with such disarray that, rather than relying on
precedent, it must resort to vote counting: Examining the various
opinions in
Jim Beam, it discerns six votes for a single
proposition that, in its view, controls this case.
Ante, at
96-97.
If we had given appropriate weight to the principle of
stare
decisis in the first place, our retroactivity jurisprudence
never would have become so hopelessly muddled. After all, it was
not that long ago that the law of retroactivity for civil cases was
considered well settled. In
Chevron Oil Co., we explained
that whether a decision will be nonretroactive depends on whether
it announces a new rule, whether prospectivity would undermine the
purposes of the
114
rule, and whether retroactive application would produce
injustice. 404 U. S., at 106-107. Even when this Court adjusted the
retroactivity rule for criminal cases on direct review some six
years ago, we reaffirmed the vitality of
Chevron Oil, noting
that retroactivity in civil cases "continues to be governed by the
standard announced in
Chevron Oil Co. v.
Huson."
Griffith v.
Kentucky, 479 U. S. 314, 322, n. 8
(1987). In
American Trucking Assns., supra, however, a
number of Justices expressed a contrary view, and the
jurisprudential equivalent of entropy immediately took over.
Whatever the merits of any retroactivity test, it cannot be denied
that resolution of the case before us would be simplified greatly
had we not disregarded so needlessly our obligation to follow
precedent in the first place.
I fear that the Court today, rather than rectifying that
confusion, reinforces it still more. In the usual case, of course,
retroactivity is not an issue; the courts simply apply their best
understanding of current law in resolving each case that comes
before them.
James B. Beam, 501 U. S., at 534, 535-536
(SOUTER, J.). But where the law changes in some respect, the courts
sometimes may elect not to apply the new law; instead, they apply
the law that governed when the events giving rise to the suit took
place, especially where the change in law is abrupt and the parties
may have relied on the prior law. See
id., at 534. This can
be done in one of two ways. First, a court may choose to make the
decision purely prospective, refusing to apply it not only to the
parties before the court but also to
any case where the
relevant facts predate the decision.
Id., at 536. Second, a
court may apply the rule to some but not all cases where the
operative events occurred before the court's decision, depending on
the equities. See
id., at 537. The first option is called
"pure prospectivity" and the second "selective prospectivity."
As the majority notes,
ante, at 96-97, six Justices in
James B. Beam, supra, expressed their disagreement with
selective prospectivity. Thus, even though there was no
majority
115
opinion in that case, one can derive from that case the
proposition the Court announces today: Once "this Court applies a
rule of federal law to the parties before it, that rule ... must be
given full retroactive effect in all cases still open on direct
review."
Ante, at 97. But no decision of this Court
forecloses the possibility of pure prospectivity-refusal to apply a
new rule in the very case in which it is announced and every case
thereafter. As JUSTICE WHITE explained in his concurrence in
James B. Beam, "[t]he propriety of prospective application
of decision in this Court, in both constitutional and statutory
cases, is settled by our prior decisions." 501 U. S., at 546
(opinion concurring in judgment).
Rather than limiting its pronouncements to the question of
selective prospectivity, the Court intimates that pure
prospectivity may be prohibited as well. See
ante, at 97
(referring to our lack of " 'constitutional authority ... to
disregard current law' ");
ibid. (relying on "'basic norms
of constitutional adjudication'" (quoting
Griffith, supra,
at 322)); see also
ante, at 94 (touting the "fundamental
rule of'retrospective operation'" of judicial decisions). The
intimation is incorrect. As I have explained before and will touch
upon only briefly here:
"[W]hen the Court changes its mind, the law changes with it. If
the Court decides, in the context of a civil case or controversy,
to change the law, it must make [a] determination whether the new
law or the old is to apply to conduct occurring before the
law-changing decision. Chevron Oil describes our
long-established procedure for making this inquiry." James B.
Beam, supra, at 550 (O'CONNOR, J., dissenting) (internal
quotation marks omitted).
Nor can the Court's suggestion be squared with our cases, which
repeatedly have announced rules of purely prospective effect. See,
e. g., Northern Pipeline Constr. Co. v.
Marathon Pipe
Line Co., 458 U.
S. 50, 88 (1982);
Chevron Oil, 404
116
u. S., at 106-107;
Phoenix v.
Kolodziejski,
399 U. S. 204,
214
(1970); Cipriano v.
City of Houma, 395 U. S. 701, 706
(1969); see also
American Trucking Assns., 496 U. S., at
188-200 (plurality opinion) (canvassing the Court's retroactivity
jurisprudence);
ante, at 110 (KENNEDY, J., concurring in
part and concurring in judgment) (citing cases).
In any event, the question of pure prospectivity is not
implicated here. The majority first holds that once a rule
has
been applied retroactively, the rule must be applied
retroactively to all cases thereafter.
Ante, at 97. Then it
holds that
Davis v.
Michigan Dept. of Treasury,
489 U. S. 803
(1989), in fact retroactively applied the rule it announced.
Ante, at 98-99. Under the majority's approach, that should
end the matter: Because the Court applied the rule retroactively in
Davis, it must do so here as well. Accordingly, there is no
reason for the Court's careless dictum regarding pure
prospectivity, much less dictum that is contrary to clear
precedent.
Plainly enough, JUSTICE SCALIA would cast overboard our entire
retroactivity doctrine with precisely the "unceremonious
'heave-ho'" he decries in his concurrence. See
ante, at 109.
Behind the undisguised hostility to an era whose jurisprudence he
finds distasteful, JUSTICE SCALIA raises but two substantive
arguments, both of which were raised in
James B. Beam, 501
U. S., at 549 (SCALIA, J., concurring in judgment), and neither of
which has been adopted by a majority of this Court. JUSTICE WHITE
appropriately responded to those arguments then, see
id., at
546 (opinion concurring in judgment), and there is no reason to
repeat the responses now. As Justice Frankfurter explained more
than 35 years ago:
"We should not indulge in the fiction that the law now announced
has always been the law .... It is much more conducive to law's
self-respect to recognize candidly the considerations that give
prospective content to
117
a new pronouncement of law." Griffin v. Illinois,
351 U. S. 12, 26 (1956) (opinion concurring in judgment).
II
I dissented in
James B. Beam because I believed that the
absolute prohibition on selective prospectivity was not only
contrary to precedent, but also so rigid that it produced
unconscionable results. I would have adhered to the traditional
equitable balancing test of
Chevron Oil as the appropriate
method of deciding the retroactivity question in individual cases.
But even if one believes the prohibition on selective prospectivity
desirable, it seems to me that the Court today takes that judgment
to an illogical-and inequitable-extreme. It is one thing to say
that, where we have considered prospectivity in a prior case and
rejected it, we must reject it in every case thereafter. But it is
quite another to hold that, because we did
not consider the
possibility of prospectivity in a prior case and instead applied a
rule retroactively through inadvertence, we are foreclosed from
considering the issue forever thereafter. Such a rule is both
contrary to established precedent and at odds with any notion of
fairness or sound decisional practice. Yet that is precisely the
rule the Court appears to adopt today.
Ante, at 96-97.
A
Under the Court's new approach, we have neither authority nor
discretion to consider the merits of applying
Davis v.
Michigan Dept. of Treasury, supra, retroactively. Instead,
we must inquire whether any of our previous decisions happened to
have applied the
Davis rule retroactively to the parties
before the Court. Deciding whether we in fact have applied
Davis retroactively turns out to be a rather difficult
matter. Parsing the language of the
Davis opinion, the Court
encounters a single sentence it declares determinative:
"The State having conceded that a refund is appropriate in
118
these circumstances, see Brief for Appellee 63, to the extent
appellant has paid taxes pursuant to this invalid tax scheme, he is
entitled to a refund."
Id., at 817 (quoted in part,
ante, at 98). According to the majority, that sentence
constitutes "'consideration of remedial issues'" and therefore
"'necessarily'" indicates that we applied the rule in
Davis
retroactively to the parties before us.
Ante, at 98 (quoting
James B. Beam, supra, at 539 (opinion of SOUTER, J.)).
Ironically, respondent and its
amici draw precisely the
opposite conclusion from the same sentence. According to them, the
fact that Michigan conceded that it would offer relief meant that
we had no reason to decide the question of retroactivity in
Davis. Michigan was willing to provide relief whether or not
relief was required. The Court simply accepted that offer and
preserved the retroactivity question for another day.
One might very well debate the meaning of the single sentence on
which everyone relies. But the debate is as meaningless as it is
indeterminate. In
Brecht v.
Abrahamson, 507 U. S. 619 (1993), we
reaffirmed our longstanding rule that, if a decision does not
"squarely addres[s] [an] issue," this Court remains "free to
address [it] on the merits" at a later date.
Id., at 631.
Accord,
United States v.
L. A. Tucker Truck Lines,
Inc., 344 U. S.
33, 38 (1952) (issue not "raised in briefs or argument nor
discussed in the opinion of the Court" cannot be taken as "a
binding precedent on thee] point");
Webster v.
Fall,
266 U. S. 507,
511 (1925) ("Questions which merely lurk in the record, neither
brought to the attention of the court nor ruled upon, are not
considered as having been so decided as to constitute precedents").
The rule can be traced back to some of the earliest of this Court's
decisions. See statement of Marshall, C. J., as reported in the
arguments of counsel in
United States v.
More, 3
Cranch 159, 172 (1805) ("No question was made, in that case, as to
the jurisdiction. It passed
sub silentio, and the court does
not consider itself as bound by that case"). Regardless of
119
how one reads the solitary sentence upon which the Court relies,
surely it does not "squarely address" the question of
retroactivity; it does not even mention retroactivity. At best, by
addressing the question of remedies, the sentence implicitly
"assumes" the rule in
Davis to be retroactive. Our decision
in
Brecht, however, makes it quite clear that unexamined
assumptions do not bind this Court.
Brecht, supra, at 631
(That the Court "assumed the applicability of" a rule does not bind
the Court to the assumption).
In fact, there is far less reason to consider ourselves bound by
precedent today than there was in
Brecht. In
Brecht,
the issue was not whether a legal question was resolved by a single
case; it was whether our consistent practice of applying a
particular rule,
Chapman v.
California, 386 U. S. 18, 24 (1967),
to cases on collateral review precluded us from limiting the rule's
application to cases on direct review. Because none of our prior
cases directly had addressed the applicability of
Chapman to
cases on collateral review-each had only assumed it applied-the
Court held that those cases did not bind us to any particular
result. See
Brecht, supra, at 630-631. I see no reason why a
single retroactive application of the
Davis rule, inferred
from the sparse and ambiguous language of
Davis itself,
should carry more weight here than our consistent practice did in
Brecht.
The Court offers no justification for disregarding the settled
rule we so recently applied in
Brecht. Nor do I believe it
could, for the rule is not a procedural nicety. On the contrary, it
is critical to the soundness of our decisional processes. It should
go without saying that any decision of this Court has wide-ranging
applications; nearly every opinion we issue has effects far beyond
the particular case in which it issues. The rule we applied in
Brecht, which limits the
stare decisis effect of our
decisions to questions actually considered and passed on, ensures
that this Court does not decide important questions by accident or
inadvertence. By adopting a contrary rule in the area of
retroactivity, the
120
Court now permanently binds itself to its every unexamined
assumption or inattention. Any rule that creates a grave risk that
we might resolve important issues of national concern
sub
silentio, without thought or consideration, cannot be a wise
one.
This case demonstrates the danger of such a rule. The question
of retroactivity was never briefed in
Davis. It had not been
passed upon by the court below. And it was not within the question
presented. Indeed, at oral argument we signaled that we would
not pass upon the retroactivity of the rule
Davis
would announce. After conceding that the Michigan Department of
Taxation would give Davis himself a refund if he prevailed, counsel
for the department argued that it would be unfair to require
Michigan to provide refunds to the 24,000 taxpayers who were not
before the Court. The following colloquy ensued:
"[COURT]: So why do we have to answer that at all? "[MICHIGAN]:
-if, if this Court issues an opinion stating that the current
Michigan classification is unconstitutional or in violation of the
statute, there are these 24,000 taxpayers out there.
"[COURT]: But that's not-it's not here, is it? Is that question
here?
"[MICHIGAN]: It is not specifically raised, no." Tr. of Oral
Arg., O. T. 1988, No. 87-1020, pp. 37-38.
Now, however, the Court holds that the question was implicitly
before us and that, even though the
Davis opinion does not
even discuss the question of retroactivity, it resolved the issue
conclusively and irretrievably.
If
Davis somehow did decide that its rule was to be
retroactive, it was by chance and not by design. The absence of
briefing, argument, or even mention of the question belies any
suggestion that the issue was given thoughtful consideration. Even
the author of the
Davis opinion refuses to ac-
121
cept the notion that
Davis resolved the question of
retroactivity. Instead, JUSTICE KENNEDY applies the analysis of
Chevron Oil to resolve the retroactivity question today. See
ante, at 110-112 (opinion concurring in part and concurring
in judgment).
The Court's decision today cannot be justified by comparison to
our decision in
Griffith v.
Kentucky, 479 U. S. 314 (1987),
which abandoned selective prospectivity in the criminal context.
Ante, at 97. As I explained in
American Trucking
Assns., 496 U. S., at 197-200, there are significant
differences between criminal and civil cases that weigh against
such an extension. First, nonretroactivity in criminal cases
historically has favored the government's reliance interests over
the rights of criminal defendants. As a result, the generalized
policy of favoring individual rights over governmental prerogative
can justify the elimination of prospectivity in the criminal arena.
The same rationale cannot apply in civil cases, as nonretroactivity
in the civil context does not necessarily favor plaintiffs or
defendants; "nor is there any policy reason for protecting one
class of litigants over another."
Id., at 198. More
important, even a party to civil litigation who is "deprived of the
full retroactive benefit of a new decision may receive some
relief."
Id., at 198199. Here, for example, petitioners
received the benefit of prospective invalidation of Virginia's
taxing scheme. From this moment forward, they will be treated on an
equal basis with all other retirees, the very treatment our
intergovernmental immunity cases require. The criminal defendant,
in contrast, is usually interested only in one remedy-reversal of
his conviction.
That remedy can be obtained only if the rule
is applied retroactively. See
id., at 199.
Nor can the Court's rejection of selective retroactivity in the
civil context be defended on equal treatment grounds. See
Griffith, supra, at 323 (selective retroactivity accords a
benefit to the defendant in whose case the decision is announced
but not to any defendant thereafter). It may well
122
be that there is little difference between the criminal
defendant in whose case a decision is announced and the defendant
who seeks certiorari on the same question two days later. But in
this case there is a tremendous difference between the defendant in
whose case the
Davis rule was announced and the defendant
who appears before us today: The latter litigated and preserved the
retroactivity question while the former did not. The Michigan
Department of Taxation did not even brief the question of
retroactivity in
Davis. Respondent, in contrast, actually
prevailed on the question in the court below.
If the Court is concerned with equal treatment, that difference
should be dispositive. Having failed to demand the unusual,
prospectivity, respondent in
Davis got the usualnamely,
retroactivity. Respondent in this case
has asked for the
unusual. In fact, respondent here defends a judgment below that
awarded it just that. I do not see how the principles of equality
can support forcing the Commonwealth of Virginia to bear the harsh
consequences of retroactivity simply because, years ago, the
Michigan Department of Taxation failed to press the issue-and we
neglected to consider it. Instead, the principles of fairness favor
addressing the contentions the Virginia Department of Taxation
presses before us by applying
Chevron Oil today. It is
therefore to
Chevron Oil that I now turn.
B
Under
Chevron Oil, whether a decision of this Court will
be applied nonretroactively depends on three factors. First, as a
threshold matter, "the decision to be applied nonretroactively must
establish a new principle of law." 404 U. S., at 106. Second,
nonretroactivity must not retard the new rule's operation in light
of its history, purpose, and effect.
Id., at 107. Third,
nonretroactivity must be necessary to avoid the substantial
injustice and hardship that a holding of retroactivity might
impose.
Ibid. In my view, all three factors favor holding
our decision in
Davis nonretroactive.
123
As JUSTICE KENNEDY points out in his concurrence,
ante,
at 111, a decision cannot be made nonretroactive unless it
announces "a new principle of law."
Chevron Oil, 404 U. S.,
at 106. For purposes of civil retroactivity,
Chevron Oil
identifies two types of decisions that can be new. First, a
decision is new if it overturns "clear past precedent on which
litigants may have relied."
Ibid.; ante, at 111 (KENNEDY,
J., concurring in part and concurring in judgment). I agree with
JUSTICE KENNEDY that
Davis did not represent such a "
'revolutionary'" or "'avulsive change'" in the law.
Ante, at
112 (quoting
Hanover Shoe, Inc. v.
United Shoe Machinery
Corp., 392 U. S.
481, 499 (1968)).
Nonetheless,
Chevron also explains that a decision may be
"new" if it resolves "an issue of first impression whose resolution
was not
clearly foreshadowed."
Chevron Oil, supra, at
106 (emphasis added). Thus, even a decision that is "controlled by
the ... principles" articulated in precedent may announce a new
rule, so long as the rule was "sufficiently debatable" in advance.
Arizona Governing Comm. for Tax Deferred Annuity and Deferred
Compensation Plans v.
Norris, 463 U. S. 1073, 1109
(1983) (O'CONNOR, J., concurring). Reading the
Davis opinion
alone, one might get the impression that it did not announce a new
rule even of that variety. The opinion's emphatic language suggests
that the outcome was not even debatable. See
ante, at 111
(KENNEDY, J., concurring in part and concurring in judgment). In my
view, however, assertive language is not itself determinative. As
THE CHIEF JUSTICE explained for the Court in a different
context:
"[T]he fact that a court says that its decision ... is
'controlled' by a prior decision, is not conclusive for purposes of
deciding whether the current decision is a 'new rule' .... Courts
frequently view their decisions as being 'controlled' or 'governed'
by prior opinions even
124
when aware of reasonable contrary conclusions reached by other
courts." Butler v. McKellar, 494 U. S. 407, 415
(1990).
In
Butler, we determined that the rule announced in
Arizona v.
Roberson, 486 U. S. 675 (1988), was
"new" for purposes of
Teague v.
Lane, 489 U. S. 288 (1989),
despite
Roberson's repeated assertions that its rule was
"directly controlled" by precedent. Indeed, we did not even feel
bound by the opinion's statement that it was not announcing a new
rule at all but rather declining to create an exception to an
existing rule. While
Teague and its progeny may not provide
the appropriate standard of novelty for
Chevron Oil
purposes, their teaching-that whether an opinion is new depends not
on its language or tone but on the legal landscape from which it
arose-obtains nonetheless.
In any event, JUSTICE STEVENS certainly thought that
Davis announced a new rule. In fact, he thought that the
rule was not only unprecedented, but wrong: "The Court's holding is
not supported by the rationale for the intergovernmental immunity
doctrine and is not compelled by our previous decisions. I cannot
join the unjustified, court-imposed restriction on a State's power
to administer its own affairs." 489 U. S., at 818-819 (dissenting
opinion). And just last Term two Members of this Court expressed
their disagreement with the decision in
Davis, labeling its
application of the doctrine of intergovernmental immunity
"perverse."
Barker v.
Kansas, 503 U. S. 594, 606 (1992)
(STEVENS, J., joined by THOMAS, J., concurring). Although I would
not call our decision in
Davis perverse, I agree that its
rule was sufficiently debatable in advance as to fall short of
being "clearly foreshadowed." The great weight of authority is in
accord.*
*Swanson v.
Powers, 937 F.2d
965, 968, 970, 971
(CA4 1991) ("The most pertinent
judicial decisions" were contrary to a holding of immunity and "the
rationale behind the precedent might have suggested a different
re-
125
In fact, before
Davis was announced, conventional wisdom
seemed to be directly to the contrary. One would think that, if
Davis was "clearly foreshadowed," some taxpayer might have
made the intergovernmental immunity argument before. No one had.
Twenty-three States had taxation schemes just like the one at issue
in
Davis; and some of those schemes were established as much
as half a century before
Davis was decided. See
Harper v.
Virginia Dept. of Taxation, 241 Va. 232,
237, 401 S. E. 2d 868, 871 (1991). Yet not a single taxpayer ever
challenged one of those schemes on intergovernmental immunity
grounds until Davis challenged Michigan's in 1984. If Justice
Holmes is correct that "[t]he prophecies of what the courts will do
in fact, and nothing more pretentious" are "law," O. Holmes, The
Path of the Law, in Collected Legal Papers 167, 173 (1920), then
surely
Davis announced
new law; the universal
"prophecy" before
Davis seemed to be that such taxation
schemes were valid.
An examination of the decision in
Davis and its
predecessors reveals that
Davis was anything but clearly
foreshadowed. Of course, it was well established long before
Davis that the nondiscrimination principle of 4 U. S. C. §
111 and the doctrine of intergovernmental immunity prohibit a State
from imposing a discriminatory tax on the United States or
suIt in
[Davis itself]"; "how the intergovernmental tax
immunity doctrine and 4 U. S. C. § 111 applied to [plans like the
one at issue in
Davis] was anything but clearly established
prior to
Davis"); Harper v.
Virginia Dept. of
Taxation, 241 Va. 232, 238, 401 S. E. 2d 868, 872 (1991)
("[T]he
Davis decision established a new rule of law by
deciding an issue of first impression whose resolution was not
clearly foreshadowed");
Swanson v.
State, 329 N. C.
576, 583, 407 S. E. 2d 791, 794 (1991) ("[T]he decision of
Davis was not clearly foreshadowed");
Bass v.
State, 302 S. C. 250, 256, 395 S. E. 2d 171, 174 (1990)
(Davis "established a new principle of law");
Bohn v.
Waddell, 164 Ariz. 74, 92, 790 P. 2d 772, 790 (1990)
(Davis "established a new principle of law"); Note,
Rejection of the "Similarly Situated Taxpayer" Rationale:
Davis
v. Michigan Department of Treasury, 43 Tax Lawyer 431, 441
(1990) ("The majority in
Davis rejected a long-standing
doctrine").
126
those who do business with it. The income tax at issue in
Davis, however, did not appear discriminatory on its face.
Like the Virginia income tax at issue here, it did not single out
federal employees or retirees for disfavored treatment. Instead,
federal retirees were treated identically to all other retirees,
with a single and numerically insignificant exception-retirees
whose retirement benefits were paid by the State. Whether such an
exception rendered the tax "discriminatory" within the meaning of
the intergovernmental immunity doctrine, it seems to me, was an
open question. On the one hand, the tax scheme did distinguish
between federal retirees and state retirees: The former were
required to pay state taxes on their retirement income, while the
latter were not. But it was far from clear that such was the proper
comparison. In fact, there were strong arguments that it was
not.
As JUSTICE STEVENS explained more thoroughly in his
Davis
dissent, 489 U. S., at 819-and as we have recognized since
McCulloch v.
Maryland, 4 Wheat. 316
(1819)-intergovernmental immunity is necessary to prevent the
States from interfering with federal interests through taxation.
Because the National Government has no recourse to the state ballot
box, it has only a limited ability to protect itself against
excessive state taxes. But the risk of excessive taxation of
federal interests is eliminated, and "[a] 'political check' is
provided, when a state tax falls" not only on the Federal
Government, but also
"on a significant group of state
citizens who can be counted upon to use their votes to keep the
State from raising the tax excessively, and thus placing an unfair
burden on the Federal Government."
Washington v.
United
States, 460 U. S.
536, 545 (1983) (emphasis added). Accord,
United States
v.
County of Fresno, 429 U. S. 452, 462-464
(1977);
South Carolina v.
Baker, 485 U. S. 505, 526,
n. 15 (1988).
There can be no doubt that the taxation scheme at issue in
Davis and the one employed by the Commonwealth of
127
Virginia provided that necessary "political check." They
exempted only a small group of citizens, state retirees, while
subjecting the remainder of their citizens-federal retirees,
retirees who receive income from private sources, and nonretirees
alike-to a uniform income tax. As a result, any attempt to increase
income taxes excessively so as to interfere with federal interests
would have caused the similarly taxed populace to "use their votes"
to protect their interests, thereby protecting the interests of the
Federal Government as well. There being no risk of abusive taxation
of the National Government, there was a good argument that there
should have been no intergovernmental immunity problem either. See
Davis, 489 U. S., at 821-824 (STEVENS, J., dissenting).
In addition, distinguishing between taxation of state retirees
and all others, including private and federal retirees, was
justifiable from an economic standpoint. The State, after all, does
not merely collect taxes from its retirees; it pays their benefits
as well. As a result, it makes no difference to the State or the
retirees whether the State increases state retirement benefits in
an amount sufficient to cover taxes it imposes, or whether the
State offers reduced benefits and makes them tax free. The net
income level of the retirees and the impact on the state fisc is
the same. Thus, the Michigan Department of Taxation had a good
argument that its differential treatment of state and federal
retirees was "directly related to, and justified by, [a]
significant differenc[e] between the two classes,"
id., at
816 (internal quotation marks omitted): Taxing federal retirees
enhances the State's fisc, whereas taxing state retirees does
not.
I recite these arguments not to show that the decision in
Davis was wrong-I joined the opinion then and remain of the
view that it was correct-but instead to point out that the
arguments on the other side were substantial. Of course, the Court
was able to "ancho[r] its decision in precedent,"
ante, at
112 (KENNEDY, J., concurring in part and con-
128
curring in judgment). But surely that cannot be dispositive. Few
decisions are so novel that there is no precedent to which they may
be moored. What is determinative is that the decision was
"sufficiently debatable"
ex ante that, under
Chevron
Oil, nonretroactivity cannot be precluded.
Arizona Governing
Committee v.
Norris, 463 U. S., at 1109 (O'CONNOR, J.,
concurring). That, it seems to me, is the case here.
2
The second
Chevron Oil factor is whether denying the rule
retroactive application will retard its operation in light of the
rule's history, purpose, and effect. 404 U. S., at 107. That factor
overwhelmingly favors respondent. The purpose of the
intergovernmental immunity doctrine is to protect the rights of the
Federal Sovereign against state interference. It does not protect
the private rights of individuals:
"[T]he purpose of the immunity was not to confer benefits on the
employees by relieving them from contributing their share of the
financial support of the other government ... , but to prevent
undue interference with the one government by imposing on it the
tax burdens of the other." Graves v. New York ex rel.
O'Keefe, 306 U. S. 466, 483-484 (1939) (footnote omitted).
Accord,
Davis, supra, at 814 ("[I]ntergovernmental tax
immunity is based on the need to protect each sovereign's
governmental operations from undue interference by the other").
Affording petitioners retroactive relief in this case would not
vindicate the interests of the Federal Government. Instead, it
lines the pockets of the Government's former employees. It
therefore comes as no surprise that the United States, despite its
consistent participation in intergovernmental immunity cases in the
past, has taken no position here. Because retroactive application
of the rule in
Davis serves petitioners' interests but not
the interests intergov-
129
ernmental immunity was meant to protect-the Federal
Government's-denying
Davis retroactive application would not
undermine the decision's purpose or effect.
3
The final factor under
Chevron Oil is whether the
decision " 'could produce substantial inequitable results if
applied retroactively.'"
Chevron Oil, supra, at 107 (quoting
Cipriano v.
City of Houma, 395 U. S., at 706). We
repeatedly have declined to give our decisions retroactive effect
where doing so would be unjust. In
Arizona Governing
Committee v.
Norris, supra, for example, we declined to
apply a Title VII decision retroactively, noting that the resulting
"unanticipated financial burdens would come at a time when many
States and local governments are struggling to meet substantial
fiscal deficits."
Id., at 1106-1107 (Powell, J., joined by
Burger, C. J., BLACKMUN, REHNQUIST, and O'CONNOR, JJ.). There was
"no justification" for "impos[ing] this magnitude of burden
retroactively on the public," we concluded.
Id., at 1107.
Accord,
id., at 1107-1111 (O'CONNOR, J., concurring); see
id., at 1075
(per curiam). Similarly, we declined to
afford the plaintiff full retroactive relief in
Los Angeles
Dept. of Water and Power v.
Manhart, 435 U. S. 702, 718-723
(1978) (STEVENS, J.). There, too, we explained that "[r]etroactive
liability could be devastating" and that "[t]he harm would fall in
large part on innocent third parties."
Id., at 722-723.
Those same considerations exist here. Retroactive application of
rulings that invalidate state tax laws have the potential for
producing "disruptive consequences for the State[s] and [their]
citizens. A refund, if required by state or federal law, could
deplete the state treasur[ies], thus threatening the State[s']
current operations and future plans."
American Trucking Assns.,
Inc. v.
Smith, 496 U. S., at 182 (plurality opinion).
Retroactive application of
Davis is no exception. "The
fiscal implications of
Davis for the
130
[S]tates," one commentator has noted, "are truly staggering."
Hellerstein, Preliminary Reflections on McKesson and American
Trucking Associations, 48 Tax Notes 325, 336 (1990). The States
estimate that their total liability will exceed $1.8 billion. Brief
for Respondent SA-l; Brief for State of Utah et al. as
Amici
Curiae 12-13. Virginia's share alone exceeds $440 million.
Brief for Respondent SA-l; Brief for State of Utah et al. as
Amici Curiae 12-13. This massive liability could not come at
a worse time. See Wall Street Journal, July 27, 1992, p. A2 ("Most
states are in dire fiscal straits, and their deteriorating tax base
is making it harder for them to get out, a survey of legislatures
indicates"). Accord,
Harper v.
Virginia Dept. of
Taxation, 241 Va., at 239-240, 401 S. E. 2d, at 873 (such
massive liability "would have a potentially disruptive and
destructive impact on the Commonwealth's planning, budgeting, and
delivery of essential state services");
Swanson v.
State, 329 N. C. 576, 583, 407 S. E. 2d 791, 794 (1991)
("this State is in dire financial straits" and $140 million in
refunds would exacerbate it);
Bass v.
State, 302 S.
C. 250, 256, 395 S. E. 2d 171, 174 (1990) ($200 million in refunds
"would impose a severe financial burden on the State and its
citizens [and] endanger the financial integrity of the State"). To
impose such liability on Virginia and the other States that relied
in good faith on their taxation laws, "at a time when most States
are struggling to fund even the most basic services, is the height
of unfairness."
James B. Beam, 501 U. S., at 558 (O'CONNOR,
J., dissenting).
It cannot be contended that such a burden is justified by the
States' conduct, for the liability is entirely disproportionate to
the offense. We do not deal with a State that willfully violated
the Constitution but rather one that acted entirely in good faith
on the basis of an unchallenged statute. Moreover, during the four
years in question, the constitutional violation produced a benefit
of approximately $8 million to $12 million per year, Tr. of Oral
Arg. 33, 36, and that benefit accrued not to the Commonwealth but
to individual retirees.
131
Yet, for that $32 million to $48 million error, the Court now
allows the imposition of liability well in excess of $400 million
dollars. Such liability is more than just disproportionate; it is
unconscionable. Finally and perhaps most important, this burden
will not fall on some thoughtless government official or even the
group of retirees that benefited from the offending exemption.
Instead the burden falls squarely on the backs of the blameless and
unexpecting taxpayers of the affected States who, although they
profited not at all from the exemption, will now be forced to pay
higher taxes and be deprived of essential services.
Petitioners, in contrast, would suffer no hardship if the Court
refused to apply
Davis retroactively. For years, 23 States
enforced taxation schemes like the Commonwealth's in good faith,
and for years not a single taxpayer objected on intergovernmental
immunity grounds. No one put the States on notice that their taxing
schemes might be constitutionally suspect. Denying
Davis
retroactive relief thus would not deny petitioners a benefit on
which they had relied. It merely would deny them an unanticipated
windfall. Because that windfall would come only at the cost of
imposing hurtful consequences on innocent taxpayers and the
communities in which they live, I believe the substantial inequity
of imposing retroactive relief in this case, like the other
Chevron factors, weighs in favor of denying
Davis
retroactive application.
III
Even if the Court is correct that
Davis must be applied
retroactively in this case, there is the separate question of the
remedy that must be given. The questions ofretroactivity and
remedy are analytically distinct.
American Trucking Assns.,
Inc. v.
Smith, supra, at 189 (plurality opinion) ("[T]he
Court has never equated its retroactivity principles with remedial
principles"). As JUSTICE SOUTER explained in
James B. Beam,
supra, at 534, retroactivity is a matter of choice of law
"[s]ince the question is whether the court
132
should apply the old rule or the new one." When the
retroactivity of a decision of this Court is in issue, the
choice-oflaw issue is a federal question.
Ashland Oil, Inc.
v.
Caryl, 497
U. S. 916, 918 (1990)
(per curiam).
The question of remedy, however, is quite different. The issue
is not whether to apply new law or old law, but what relief should
be afforded once the prevailing party has been determined under
applicable law. See
James B. Beam, 501 U. S., at 535
(SOUTER, J.) ("Once a rule is found to apply 'backward,' there may
then be a further issue of remedies, i.
e., whether the
party prevailing under a new rule should obtain the same relief
that would have been awarded if the rule had been an old one"). The
question of remedies is in the first instance a question of state
law. See
ibid. ("[T]he remedial inquiry is one governed by
state law, at least where the case originates in state court"). In
fact, the only federal question regarding remedies is whether the
relief afforded is sufficient to comply with the requirements of
due process. See
McKesson Corp. v.
Division of Alcoholic
Beverages and Tobacco, Fla. Dept. of Business Regulation,
496 U. S. 18,
31-52 (1990).
While the issue of retroactivity is properly before us, the
question of remedies is not. It does not appear to be within the
question presented, which asks only if
Davis may be applied
"nonretroactively so as to defeat federal retirees' entitlement to
refunds." Pet. for Cert. i. Moreover, our consideration of the
question at this juncture would be inappropriate, as the Supreme
Court of Virginia has yet to consider what remedy might be
available in light of
Davis' retroactivity and applicable
state law. The Court inexplicably discusses the question at length
nonetheless, noting that if the Commonwealth of Virginia provides
adequate predeprivation remedies, it is under no obligation to
provide full retroactive refunds today.
Ante, at
100-102.
When courts take it upon themselves to issue helpful guidance in
dictum, they risk creating additional confusion by
133
inadvertently suggesting constitutional absolutes that do not
exist. The Court's dictum today follows that course. Amidst its
discussion of predeprivation and postdeprivation remedies, the
Court asserts that a plaintiff who has been deprived a
predeprivation remedy cannot be "confine[d] ... to prospective
relief."
Ante, at 101, n. 10. I do not believe the Court's
assertion to be correct.
Over 20 years ago, Justice Harlan recognized that the equities
could be taken into account in determining the appropriate remedy
when the Court announces a new rule of constitutional law:
"To the extent that equitable considerations, for example,
'reliance,' are relevant, I would take this into account in the
determination of what relief is appropriate in any given case.
There are, of course, circumstances when a change in the law will
jeopardize an edifice which was reasonably constructed on the
foundation of prevailing legal doctrine." United States v.
Estate of Donnelly, 397 U. S. 286, 296 (1970)
(concurring opinion).
The commentators appear to be in accord. See Fallon &
Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies,
104 Harv. L. Rev. 1733 (1991) (urging consideration of novelty and
hardship as part of the remedial framework rather than as a
question of whether to apply old law or new). In my view, and in
light of the Court's revisions to the law of retroactivity, it
should be constitutionally permissible for the equities to inform
the remedial inquiry. In a particularly compelling case, then, the
equities might permit a State to deny taxpayers a full refund
despite having refused them predeprivation process.
Indeed, some Members of this Court have argued that we
recognized as much long ago. In
American Trucking Assns.,
496 U. S., at 219-224 (dissenting opinion), JUSTICE STEVENS
admitted that this Court repeatedly had applied the
Chevron
Oil factors to preclude the provision of mone-
134
tary relief. In JUSTICE STEVENS' view, however,
Chevron
Oil determined the question of remedy rather than which law
would apply, new or old. See 496 U. S., at 220
(Chevron Oil
and its progeny "establish a remedial principle for the exercise of
equitable discretion by federal courts and not, as the plurality
states, a choice-of-Iaw principle applicable to all cases on direct
review"); see also
ante, at 95, n. 9 (reserving the
possibility that
Chevron Oil governs the question of
remedies in federal court). If JUSTICE STEVENS' view or something
like it has prevailed today-and it seems that it has-then state and
federal courts still retain the ability to exercise their
"equitable discretion" in formulating appropriate relief on a
federal claim. After all, it would be wholly anomalous to suggest
that federal courts are permitted to determine the scope of the
remedy by reference to
Chevron Oil, but that state courts
are barred from considering the equities altogether. Not only would
that unduly restrict state court "flexibility in the law of
remedies,"
Estate of Donnelly, supra, at 297 (Harlan, J.,
concurring), but it also would turn federalism on its head. I know
of no principle of law that permits us to restrict the remedial
discretion of state courts without imposing similar restrictions on
federal courts. Quite the opposite should be true, as the question
of remedies in state court is generally a question of state law in
the first instance.
James B. Beam, 501 U. S., at 535
(SOUTER, J.).
The Court cites only a single case that might be read as
precluding courts from considering the equities when selecting the
remedy for the violation of a novel constitutional rule. That case
is
McKesson Corp. v.
Division of Alcoholic Beverages and
Tobacco, supra. Ante, at 101-102. But, as the controlling
opinion in
James B. Beam explains,
McKesson cannot be
so read. 501 U. S., at 544 ("Nothing we say here [precludes the
right] to raise procedural bars to recovery under state law
or
demonstrate reliance interests entitled to consideration in
determining the nature of the remedy that must be provided,
a matter with which McKes-
135
son did not deal" (emphases added)). Accord,
id.,
at 543 ("[NJothing we say here precludes consideration of
individual equities when deciding remedial issues in particular
cases"). It is true that the Court in
McKesson rejected, on
due process grounds, the State of Florida's equitable arguments
against the requirement of a full refund. But the opinion did not
hold that those arguments were irrelevant as a categorical matter.
It simply held that the equities in that case were insufficient to
support the decision to withhold a remedy. The opinion expressly so
states, rejecting the State's equitable arguments as insufficiently
"weighty
in these circumstances." McKesson, 496 U. S., at 45
(emphasis added).
The circumstances in
McKesson were quite different than
those here. In
McKesson, the tax imposed was patently
unconstitutional: The State of Florida collected taxes under its
Liquor Tax statute even though this Court already had invalidated a
"virtually identical" tax.
Id., at 46. Given that the State
could "hardly claim surprise" that its statute was declared
invalid, this Court concluded that the State's reliance on the
presumptive validity of its statute was insufficient to preclude
monetary relief.
Ibid. As we explained in
American
Trucking Assns., the large burden of retroactive relief is
"largely irrelevant when a State violates constitutional norms well
established under existing precedent." We cited
McKesson as
an example. 496 U. S., at 183 (plurality opinion).
A contrary reading of
McKesson would be anomalous in
light of this Court's immunity jurisprudence. The Federal
Government, for example, is absolutely immune from suit absent an
express waiver of immunity; and federal officers enjoy at least
qualified immunity when sued in a
Bivens action.
Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U.
S. 388 (1971). As a result, an individual who suffers a
constitutional deprivation at the hands of a federal officer very
well may have no access to backwards-looking (monetary) relief. I
do not see why the Due Process Clause would
136
require a full, backwards-looking compensatory remedy whenever a
governmental official reasonably taxes a citizen under what later
turns out to be an unconstitutional statute but not where the
officer deprives a citizen of her bodily integrity or her life.
In my view, if the Court is going to restrict authority to
temper hardship by holding our decisions nonretroactive through the
Chevron Oil factors, it must afford courts the ability to
avoid injustice by taking equity into account when formulating the
remedy for violations of novel constitutional rules. See Fallon
& Meltzer, 104 Harv. L. Rev. 1733 (1991). Surely the
Constitution permits this Court to refuse plaintiffs full
backwards-looking relief under
Chevron Oil; we repeatedly
have done so in the past.
American Trucking Assns., supra,
at 188-200 (canvassing the Court's practice); see also
supra, at 115-116, 129. I therefore see no reason why it
would not similarly permit state courts reasonably to consider the
equities in the exercise of their sound remedial discretion.
IV
In my view, the correct approach to the retroactivity question
before us was articulated in
Chevron Oil some 22 years ago.
By refusing to apply
Chevron Oil today, the Court not only
permits the imposition of grave and gratuitous hardship on the
States and their citizens, but also disregards settled precedents
central to the fairness and accuracy of our decisional processes.
Nor does the Court cast any light on the nature of the regime that
will govern from here on. To the contrary, the Court's unnecessary
innuendo concerning pure prospectivity and ill-advised dictum
regarding remedial issues introduce still greater uncertainty and
disorder into this already chaotic area. Because I cannot agree
with the Court's decision or the manifestly unjust results it
appears to portend, I respectfully dissent.
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