James Beam Distilling Company v. Georgia/Concurrence Blackmun

by Harry Blackmun

Justice BLACKMUN, with whom Justice MARSHALL and Justice SCALIA join, concurring in the judgment.

I join Justice SCALIA's opinion because I agree that failure to apply a newly declared constitutional rule to cases pending on direct review violates basic norms of constitutional adjudication. It seems to me that our decision in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), makes clear that this Court's function in articulating new rules of decision must comport with its duty to decide only "cases" and "controversies." See U.S.C.onst., Art. III, § 2, cl. 1. Unlike a legislature, we do not promulgate new rules to "be applied prospectively only," as the dissent, post, at 550, and perhaps the Court, would have it. The nature of judicial review constrains us to consider the case that is actually before us, and, if it requires us to announce a new rule, to do so in the context of the case and apply it to the parties who brought us the case to decide. To do otherwise is to warp the role that we, as judges, play in a government of limited powers.

I do not read Justice SCALIA's comments on the division of federal powers to reject the idea expressed so well by the last Justice Harlan that selective application of new rules violates the principle of treating similarly situated defendants the same. See Mackey v. United States, 401 U.S. 667, 678-679, 91 S.Ct. 1160, 1172-1173, 28 L.Ed.2d 404 (1971), and Desist v. United States, 394 U.S. 244, 258-259, 89 S.Ct. 1030, 1038-1039, 22 L.Ed.2d 248 (1969) (dissenting opinion), on which Griffith relied. This rule, which we have characterized as a question of equity, is not the remedial equity that the dissent seems to believe can trump the role of adjudication in our constitutional scheme. See post, at 550-551. It derives from the integrity of judicial review, which does not justify applying principles determined to be wrong to litigants who are in or may still come to court. We fulfill our judicial responsibility by requiring retroactive application of each new rule we announce.

Application of new decisional rules does not thwart the principles of stare decisis, as the dissent suggests. See post, at 552. The doctrine of stare decisis profoundly serves important purposes in our legal system. Nearly a half century ago, Justice Roberts cautioned: "Respect for tribunals must fall when the bar and the public come to understand that nothing that has been said in prior adjudication has force in a current controversy." Mahnich v. Southern S.S.C.o., 321 U.S. 96, 113, 64 S.Ct. 455, 463, 88 L.Ed. 561 (1944) (dissenting opinion). The present dissent's view of stare decisis would rob the doctrine of its vitality through eliminating the tension between the current controversy and the new rule. By announcing new rules prospectively or by applying them selectively, a court may dodge the stare decisis bullet by avoiding the disruption of settled expectations that otherwise prevents us from disturbing our settled precedents. Because it forces us to consider the disruption that our new decisional rules cause, retroactivity combines with stare decisis to prevent us from altering the law each time the opportunity presents itself.

Like Justice SCALIA, I conclude that prospectivity, whether "selective" or "pure," breaches our obligation to discharge our constitutional function.

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