James Beam Distilling Company v. Georgia/Concurrence White

Justice WHITE, concurring in the judgment.

I agree with Justice SOUTER that the opinion in Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984), may reasonably be read as extending the benefit of the judgment in that case to the appellant Bacchus Imports. I also agree that the decision is to be applied to other litigants whose cases were not final at the time of the Bacchus decision. This would be true under any one of several suppositions. First, if the Court in that case thought its decision to have been reasonably foreseeable and hence not a new rule, there would be no doubt that it would be retroactive to all similarly situated litigants. Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), would not then have been implicated. Second, even if retroactivity depended upon consideration of the Chevron Oil factors, the Court may have thought that retroactive application was proper. Here, it should be noted that although the dissenters in Bacchus-including Justice O'CONNOR-agreed that the Court erred in deciding the Twenty-first Amendment issue against the State, they did not argue that the Court erred in giving the appellant the benefit of its decision. Bacchus, supra, at 278, 104 S.Ct., at 3059 (STEVENS, J., dissenting). Third, even if-as Justice O'CONNOR now argues-the Court was quite wrong in doing so, post, at 553-559, that is water over the dam, irretrievably it seems to me. There being no precedent in civil cases applying a new rule to the parties in the case but not to others similarly situated, #fn-s and Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), having overruled such a practice in criminal cases (a decision from which I dissented and still believe wrong, but which I now follow on the basis of stare decisis ), I agree that the petitioner here should have the benefit of Bacchus, just as Bacchus Imports did. Hence I concur in the judgment of the Court.

Nothing in the above, however, is meant to suggest that I retreat from those opinions filed in this Court which I wrote or joined holding or recognizing that in proper cases a new rule announced by the Court will not be applied retroactively, even to the parties before the Court. See, e.g., Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1969). This was what Justice Stewart wrote for the Court in Chevron Oil, summarizing what was deemed to be the essence of those cases. Chevron Oil, supra, at 105-109, 92 S.Ct., at 355-357. This was also what Justice O'CONNOR wrote for the plurality in American Trucking Assns., Inc. v. Smith, 496 U.S., 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990). I joined that opinion and would not depart from it. Nor, without overruling Chevron Oil and those other cases before and after Chevron Oil, holding that certain decisions will be applied prospectively only, can anyone sensibly insist on automatic retroactivity for any and all judicial decisions in the federal system.

Hence, I do not understand how Justice SOUTER can cite the cases on prospective operation, ante, at 536-537, and yet say that he need not speculate as to the propriety of pure prospectivity, ante, at 544. The propriety of prospective application of decision in this Court, in both Constitutional and statutory cases, is settled by our prior decisions. To nevertheless "speculate" about the issue is only to suggest that there may come a time when our precedents on the issue will be overturned.

Plainly enough, Justices SCALIA, MARSHALL, and BLACKMUN would depart from our precedents. Justice SCALIA would do so for two reasons, as I read him. Post, at. First, even though the Justice is not naive enough (nor does he think the Framers were naive enough) to be unaware that judges in a real sense "make" law, he suggests that judges (in an unreal sense, I suppose) should never concede that they do and must claim that they do no more than discover it, hence suggesting that there are citizens who are naive enough to believe them. Second, Justice SCALIA, fearful of our ability and that of other judges to resist the temptation to overrule prior cases, would maximize the injury to the public interest when overruling occurs, which would tend to deter them from departing from established precedent.

I am quite unpersuaded by this line of reasoning and hence concur in the judgment on the narrower ground employed by Justice SOUTER.