Cite as: 509 U. S. 86 (1993)
O'Connor, J., dissenting
inadvertently suggesting constitutional absolutes that do not exist. The Court's dictum today follows that course. Amidst its discussion of predeprivation and postdeprivation remedies, the Court asserts that a plaintiff who has been deprived a predeprivation remedy cannot be "confine[d] . . . to prospective relief." Ante, at 101, n. 10. I do not believe the Court's assertion to be correct.
Over 20 years ago, Justice Harlan recognized that the equities could be taken into account in determining the appropriate remedy when the Court announces a new rule of constitutional law:
"To the extent that equitable considerations, for example, 'reliance,' are relevant, I would take this into account in the determination of what relief is appropriate in any given case. There are, of course, circumstances when a change in the law will jeopardize an edifice which was reasonably constructed on the foundation of prevailing legal doctrine." United States v. Estate of Donnelly, 397 U. S. 286, 296 (1970) (concurring opinion).
The commentators appear to be in accord. See Fallon & Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1733 (1991) (urging consideration of novelty and hardship as part of the remedial framework rather than as a question of whether to apply old law or new). In my view, and in light of the Court's revisions to the law of retroactivity, it should be constitutionally permissible for the equities to inform the remedial inquiry. In a particularly compelling case, then, the equities might permit a State to deny taxpayers a full refund despite having refused them predeprivation process.
Indeed, some Members of this Court have argued that we recognized as much long ago. In American Trucking Assns., 496 U. S., at 219-224 (dissenting opinion), Justice Stevens admitted that this Court repeatedly had applied the Chevron Oil factors to preclude the provision of mone-
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