Article III, Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Prior to 1965,
both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this Court . . . subject to [certain] limited exceptions.1 Statutory and judge-made law have consequences, at least to the extent that people must rely on them in making decisions and shaping their conduct. Therefore, the Court was moved to recognize that there should be a reconciling of constitutional interests reflected in a new rule of law with reliance interests founded upon the old.2 In both criminal and civil cases, however, the Court's discretion to do so has been constrained by later decisions.
In the 1960s, when the Court began its expansion of the Bill of Rights and applied its rulings to the states, it became necessary to determine the application of the rulings to criminal defendants who had exhausted all direct appeals but who could still resort to habeas corpus, to those who had been convicted but still were on direct appeal, and to those who had allegedly engaged in conduct but who had not gone to trial. At first, the Court drew the line at cases in which judgments of conviction were not yet final, so that all persons in those situations obtained retrospective use of decisions,3 but the Court later promulgated standards for a balancing process that resulted in different degrees of retroactivity in different cases.4 Generally, in cases in which the Court declared a rule that was
a clear break with the past, it denied retroactivity to all defendants, with the sometime exception of the appellant himself.5 With respect to certain cases in which a new rule was intended to overcome an impairment of the truth-finding function of a criminal trial6 or to cases in which the Court found that a constitutional doctrine barred the conviction or punishment of someone,7 full retroactivity, even to habeas claimants, was the rule. Justice Harlan strongly argued that the Court should sweep away its confusing balancing rules and hold that all defendants whose cases are still pending on direct appeal at the time of a law-changing decision should be entitled to invoke the new rule, but that no habeas claimant should be entitled to benefit.8
The Court later drew a sharp distinction between criminal cases pending on direct review and cases pending on collateral review. For cases on direct review,
a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.9 Justice Harlan's habeas approach was first adopted by a plurality in Teague v. Lane10 and then by the Court in Penry v. Lynaugh.11 Thus, for collateral review in federal courts of state court criminal convictions, the general rule is that
new rules of constitutional interpretation – those
not 'dictated by precedent existing at the time the defendant's conviction became final'12 – will not be applied.13 However,
[a] new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a 'watershed rul[e] of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding.14 Put another way, a new rule will be applied in a collateral proceeding only if it places certain kinds of conduct
beyond the power of the criminal law-making authority to prescribe or constitutes a
new procedure[ ] without which the likelihood of an accurate conviction is seriously diminished.15 In Montgomery v. Louisiana, the Court extended the holding of Teague beyond the context of federal habeas review, such that when a new substantive rule of constitutional law controls the outcome of a case, state collateral review courts must give retroactive effect to that rule in the same manner as federal courts engaging in habeas review.16
As a result, at least with regard to the first exception, the Court has held that the Teague rule is constitutionally based,17 as substantive rules set forth categorical guarantees that place certain laws and punishments beyond a state’s power, making
the resulting conviction or sentence . . . by definition . . . unlawful.18In contrast, procedural rules are those that are aimed at enhancing the accuracy of a conviction or sentence by regulating the manner of determining the defendant’s guilt.19 As a consequence, with respect to a defendant who did not receive the benefit of a new procedural rule, the possibility exists that the underlying conviction or sentence may
still be accurate and the
defendant’s continued confinement may still be lawful under the Constitution.20 In this vein, the Court has described a substantive rule as one that alters the range of conduct that the law punishes, or that prohibits
a certain category of punishment for a class of defendants because of their status or offense.21 Under the second exception it is
not enough under Teague to say that a new rule is aimed at improving the accuracy of a trial. More is required. A rule that qualifies under this exception must not only improve accuracy, but also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.22
What the rule is to be, and indeed if there is to be a rule, in civil cases has been disputed to a rough draw in recent cases. As was noted above, there is a line of civil cases, constitutional and nonconstitutional, in which the Court has declined to apply new rules, the result often of overruling older cases, retrospectively, sometimes even to the prevailing party in the case.23 As in criminal cases, the creation of new law, through overrulings or otherwise, may result in retroactivity in all instances, in pure prospectivity, or in partial prospectivity in which the prevailing party obtains the results of the new rule but no one else does. In two cases raising the question when states are required to refund taxes collected under a statute that is subsequently ruled unconstitutional, the Court revealed itself to be deeply divided.24 The question in Beam was whether the company could claim a tax refund under an earlier ruling holding unconstitutional the imposition of certain taxes upon its products. The holding of a fractionated Court was that it could seek a refund, because in the earlier ruling the Court had applied the holding to the contesting company, and, once a new rule has been applied retroactively to the litigants in a civil case, considerations of equality and stare decisis compel application to all.25 Although partial or selective prospectivity is thus ruled out, neither pure retroactivity nor pure prospectivity is either required or forbidden.
Four Justices adhered to the principle that new rules, as defined above, may be applied purely prospectively, without violating any tenet of Article III or any other constitutional value.26 Three Justices argued that all prospectivity, whether partial or total, violates Article III by expanding the jurisdiction of the federal courts beyond true cases and controversies.27 Apparently, the Court now has resolved this dispute, although the principal decision was by a five-to-four vote. In Harper v. Virginia Dep’t of Taxation,28 the Court adopted the principle of the Griffith decision in criminal cases and disregarded the Chevron Oil approach in civil cases. Henceforth, in civil cases, the rule is:
When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.29 Four Justices continued to adhere to Chevron Oil, however,30 so that with one Justice each retired from the different sides one may not regard the issue as definitively settled.31 Future cases must, therefore, be awaited for resolution of this issue.