Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Under English common law, from which much of the American judicial system is derived, judicial decisions applied retroactively. The Supreme Court has explained that the common law approach was motivated by the belief that “the duty of the court was not to ‘pronounce a new law, but to maintain and expound the old one.’” 1 Applying judicial decisions retroactively can create practical difficulties, however: regulated parties must rely on the law as they understand it in making decisions and shaping their conduct, but court decisions may change the legal landscape by resolving open legal questions, striking down unconstitutional laws or government actions, or overruling prior judicial decisions. Early American cases generally followed the common law approach and held that Supreme Court decisions applied retroactively.2 By contrast, starting in the 1960s, the Court has at times limited the retroactive application of judicial decisions announcing new rules of law in light of regulated entities’ reliance on the prior rule.3

The Court’s retroactivity jurisprudence distinguishes between criminal and civil cases. The following essays discuss the extent to which the Court has applied its decisions retroactively in criminal4 and civil5 litigation.

Footnotes

1

Linkletter v. Walker, 381 U.S. 618, 622–23 (1965) (quoting 1 W. Blackstone, Commentaries 69).

2

E.g., Robinson v. Neil, 409 U.S. 505, 507 (1973) (Prior to 1965, “both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this Court . . . subject to limited exceptions.” ).

3

See, e.g., Lemon v. Kurtzman, 411 U.S. 192, 198–99 (1973).

4

See ArtIII.S1.7.3.2 Retroactivity of Criminal Decisions.

5

See ArtIII.S1.7.3.3 Retroactivity of Civil Decisions.