Cite as: 509 U. S. 86 (1993)
Scalia, J., concurring
commentator calculated, "[b]y 1959, the number of instances in which the Court had reversals involving constitutional issues had grown to sixty; in the two decades which followed, the Court overruled constitutional cases on no less than forty-seven occasions." Maltz, Some Thoughts on the Death of Stare Decisis in Constitutional Law, 1980 Wis. L. Rev. 467. It was an era when this Court cast overboard numerous settled decisions, and indeed even whole areas of law, with an unceremonious "heave-ho." See, e. g., Mapp v. Ohio, 367 U. S. 643 (1961) (overruling Wolf v. Colorado, 338 U. S. 25 (1949)); Gideon v. Wainwright, 372 U. S. 335 (1963) (overruling Betts v. Brady, 316 U. S. 455 (1942)); Miranda v. Arizona, 384 U. S. 436, 479, n. 48 (1966) (overruling Crooker v. California, 357 U. S. 433 (1958), and Cicenia v. Lagay, 357 U. S. 504 (1958)); Katz v. United States, 389 U. S. 347 (1967) (overruling Olmstead v. United States, 277 U. S. 438 (1928), and Goldman v. United States, 316 U. S. 129 (1942)). To argue now that one of the jurisprudential tools of judicial activism from that period should be extended on grounds of stare decisis can only be described as paradoxical.2
In sum, I join the opinion of the Court because the doctrine of prospective decisionmaking is not in fact protected
2 Contrary to the suggestion in the dissent, I am not arguing that we should "cast overboard our entire retroactivity doctrine with . . . [an] unceremonious heave-ho." Post, at 116 (emphasis added; internal quotation marks omitted). There is no need. We cast over the first half six Terms ago in Griffith, and deep-sixed most of the rest two Terms ago in James B. Beam Distilling Co. v. Georgia, 501 U. S. 529 (1991)—in neither case unceremoniously (in marked contrast to some of the overrulings cited in text). What little, if any, remains is teetering at the end of the plank and needs no more than a gentle nudge. But if the entire doctrine had been given a quick and unceremonious end, there could be no complaint on the grounds of stare decisis; as it was born, so should it die. I do not know the basis for the dissent's contention that I find the jurisprudence of the era that produced the doctrine of prospectivity "distasteful." Post, at 116. Much of it is quite appetizing. It is only the cavalier treatment of stare decisis and the invention of prospectivity that I have criticized here.
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