Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 16 (1993)

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Cite as: 509 U. S. 86 (1993)

O'Connor, J., dissenting

opinion in that case, one can derive from that case the proposition the Court announces today: Once "this Court applies a rule of federal law to the parties before it, that rule . . . must be given full retroactive effect in all cases still open on direct review." Ante, at 97. But no decision of this Court forecloses the possibility of pure prospectivity—refusal to apply a new rule in the very case in which it is announced and every case thereafter. As Justice White explained in his concurrence in James B. Beam, "[t]he propriety of prospective application of decision in this Court, in both constitutional and statutory cases, is settled by our prior decisions." 501 U. S., at 546 (opinion concurring in judgment).

Rather than limiting its pronouncements to the question of selective prospectivity, the Court intimates that pure prospectivity may be prohibited as well. See ante, at 97 (referring to our lack of " 'constitutional authority . . . to disregard current law' "); ibid. (relying on " 'basic norms of constitutional adjudication' " (quoting Griffith, supra, at 322)); see also ante, at 94 (touting the "fundamental rule of 'retrospective operation' " of judicial decisions). The intimation is incorrect. As I have explained before and will touch upon only briefly here:

"[W]hen the Court changes its mind, the law changes with it. If the Court decides, in the context of a civil case or controversy, to change the law, it must make [a] determination whether the new law or the old is to apply to conduct occurring before the law-changing decision. Chevron Oil describes our long-established procedure for making this inquiry." James B. Beam, supra, at 550 (O'Connor, J., dissenting) (internal quotation marks omitted).

Nor can the Court's suggestion be squared with our cases, which repeatedly have announced rules of purely prospective effect. See, e. g., Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 88 (1982); Chevron Oil, 404

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