Monday, July 13, 2020

Skirmishes over Non-Retroactivity Doctrine at the Supreme Court

Guest Blogger

Samuel Beswick

In two judgments this term, Barr v. AAPC and Ramos v. Louisiana, the Supreme Court justices seem to have signaled their positions on the future of federal non-retroactivity doctrine. This doctrine, as I argue in a forthcoming article in the Yale Law Journal, is fundamentally flawed and should not be maintained.

Non-retroactivity doctrine (also known as “prospective overruling” or prospective judicial law-making) came to prominence with the Warren and Burger Courts in the 1960s and 1970s. It defies the conventional conception of common law adjudication whereby judicial decisions both bear upon past events and lay down the law for future cases. Non-retroactive adjudication constrains the effects of judicial changes in the law from applying to the past. Only events post-dating a new precedent are treated as governed by it.

The supposed benefit of this doctrine is that it allows judges to make positive changes in the law without those changes upsetting vested rights and reliance interests. Courts have used it to expand constitutional rights protections while shielding states and officials from liability over past infringements of newly recognized rights. The problem with the doctrine is that any line between judicial development of (old) law and judicial making of (new) law is entirely in the eye of the beholder. There are no principled criteria for demarcating when parties should be shielded from judicial changes in the law. It is for this reason that the doctrine fell out of favor with the Rehnquist Court and was essentially abandoned in the mid-1990s (Justice Thomas penning its demise in Harper v. Va. Dep’t of Taxation). The conventional approach seemingly won out: judgments apply retroactively.

Now, the Supreme Court’s newest member seems keen on reviving non-retroactivity doctrine.

In Barr v. AAPC, the Supreme Court invalidated a government debt-collection exception to the federal law restricting robocalls. As Will Baude has pointed out, Justice Kavanaugh’s plurality opinion includes a curious footnote concerning the temporal scope of the judgment. Footnote 12 reads:

As the Government acknowledges, although our decision means the end of the government-debt exception, no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception and before the entry of final judgment by the District Court on remand in this case, or such date that the lower courts determine is appropriate. See Reply Brief 24. On the other side of the ledger, our decision today does not negate the liability of parties who made robocalls covered by the robocall restriction.

This footnote is curious in two respects. First, it appears to indicate either that the judgment applies non-retroactively, or that collectors of government debt have a defense of good-faith reliance on the pre-Barr understanding of the law. Both doctrines run counter to the conventional view of judicial decision-making: that judgments interpret the law (and rights of action under law) retroactively, and that ignorance of the law does not excuse. Justice Gorsuch emphasized this former point in his concurrence in Barr, cautioning that “prospective decisionmaking has never been easy to square with the judicial power.” (Justice Scalia had been more emphatic when he said that prospective overruling is “impermissible simply because it is not allowed by the Constitution”: James B. Beam Distilling Co. v. Georgia.)

The second surprising feature of this footnote is that Chief Justice Roberts and Justice Alito joined it. Both judges had dissented this same term in Ramos v. Louisiana, a case touching on criminal non-retroactivity doctrine. Justice Kavanaugh in Ramos had embraced “non-retroactivity doctrine to mitigate the disruptive effects of overrulings in criminal cases.” That statement prompted rebuke from Alito, who criticized Kavanaugh for opining on the subject “without briefing or argument,” and questioned the “new” rule versus “old” rule premise upon which the non-retroactivity test rests. The Chief Justice and Justice Kagan both joined Alito’s dissent.

Kavanaugh seems to be the most enthusiastic proponent of non-retroactivity doctrine on the Court. His colleagues on the bench have been more circumspect. In the 2011 case of Davis v. United States, the Court held that new Fourth Amendment precedent must apply retroactively. The judges split, however, over whether the police could avail themselves of a defense of good-faith belief in the lawfulness of their conduct. Justice Alito’s majority judgment favored a good-faith defense, whereas Justice Breyer and Justice Ginsburg, dissenting, considered that “[a] new ‘good faith’ exception and this Court’s retroactivity decisions are incompatible.”

Meanwhile, the Court passed over civil non-retroactivity doctrine in South Dakota v. Wayfair when a majority overruled precedent that had shielded businesses that lacked physical presence in a state from state sales tax. The majority did so despite concerns expressed by the respondent companies that this would expose them to substantial and expansive retroactive tax liability. Indeed, it was because of this “troubling” (but seemingly inevitable) retroactive effect that the dissenting judges (Roberts, joined by Breyer, Sotomayor, and Kagan) would have punted the problem to Congress to legislate in a more nuanced way.

Federal non-retroactivity doctrine has languished for two decades. As I explain on the New Private Law Blog, revival of the doctrine (or embrace of the proxy doctrine of good-faith reliance on subsequently impugned law) is unnecessary and would sew confusion over the temporal scope of new constitutional judgments. It could substantially impede private rights of action brought in the light of such judgments.

Footnote 12 of Barr notwithstanding, it appears that the current balance of the Roberts Court tilts against reviving non-retroactivity doctrine. It also seems inevitable that this issue will come up for judicial determination again.

Samuel Beswick is Assistant Professor at the Peter A. Allard School of Law, The University of British Columbia. You can reach him by e-mail at

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