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 beswick@allard.ubc.ca