Cite as: 514 U. S. 749 (1995)
Scalia, J., concurring
that new rule, for well-established legal reasons, does not determine the outcome of the case. Thus, a court may find (1) an alternative way of curing the constitutional violation, or (2) a previously existing, independent legal basis (having nothing to do with retroactivity) for denying relief, or (3) as in the law of qualified immunity, a well-established general legal rule that trumps the new rule of law, which general rule reflects both reliance interests and other significant policy justifications, or (4) a principle of law, such as that of "finality" present in the Teague context, that limits the principle of retroactivity itself. But, this case involves no such instance; nor does it involve any other special circumstance that might somehow justify the result Hyde seeks. Rather, Hyde offers no more than simple reliance (of the sort at issue in Chevron Oil) as a basis for creating an exception to Harper's rule of retroactivity—in other words, she claims that, for no special reason, Harper does not apply. We are back where we started. Hyde's necessary concession, that Harper governs this case, means that she cannot prevail.
The judgment of the Supreme Court of Ohio is
Reversed.
Justice Scalia, with whom Justice Thomas joins, concurring.
I join the opinion of the Court, which assumes that the Ohio Supreme Court denied petitioner a "remedy" for the unconstitutionality of the tolling statute, and refutes the notion that "remedial discretion" would allow that unconstitutionality to be given no effect. That was the theory on which this case was presented and argued, and it is properly decided on the same basis.
I write separately, however, to record my doubt that the case in fact presents any issue of remedies or of remedial discretion at all. A court does not—in the nature of things it can not—give a "remedy" for an unconstitutional statute, since an unconstitutional statute is not in itself a cognizable
759
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