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Opinion of O'CONNOR, J.

496 U. S.

rather than on the reliance interests of either the defendant or the government, Griffith implicitly rejected the rationale of our prior retroactivity doctrine: that new decisions should not be applied retroactively so as to frustrate the expectations of parties who had justifiably relied on prior law.

The Court's analysis in Griffith must be understood in context. During the period in which much of our retroactivity doctrine evolved, most of the Court's new rules of criminal procedure had expanded the protections available to criminal defendants. See generally Beytagh, supra, n. 2. Therefore, whenever the Court determined that retroactive application of a new rule would be inequitable, the Court was, in effect, according the government's reliance interests more weight than the defendant's interests in receiving the benefit of the rule. See, e. g., United States v. United States Coin & Currency, 401 U. S. 715, 726 (1971) (BRENNAN, J., concurring) (“[W]hen a new procedural rule has cast no substantial doubt upon the reliability of determinations of guilt in criminal cases, we have denied the rule retroactive effect where a contrary decision would “impose a substantial burden .. upon the ... judicial system . . .'”) (quoting Williams v. United States, 401 U. S. 646, 664 (1971)). Griffith’s adoption of a per se rule of retroactivity can thus be understood as a rejection of this approach in favor of providing expanded procedural protections to criminal defendants. Under this new theory, any defendant whose conviction had not yet become final should be given the benefit of a new decision regardless of the additional burden this might place on law enforcement authorities.

There are no analogous reasons for adopting a per se rule of retroactivity in the civil context. Either party before a court may benefit from the application of the Chevron Oil rule. New decisions are not likely to favor civil defendants over civil plaintiffs; nor is there any policy reason for protecting one class of litigants over another. Moreover, even a party who is deprived of the full retroactive benefit of a new

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decision may receive some relief. In this case, for example, petitioners are benefited by the prospective invalidation of the Arkansas tax and a ruling that Scheiner is applicable to taxation of highway use after the date of decision in that case. The criminal defendant, on the other hand, is generally interested in only one remedy: the reversal of his conviction. The prospective invalidation of a rule relied on in securing his conviction will not assist the criminal defendant in any way. Nor does Griffith's criticism that nonretroactivity gives the benefit of a new rule to a "chance beneficiary” but then “permit[s] a stream of similar cases subsequently to flow by unaffected by that new rule,” 479 U. S., at 323 (citation omitted), have force in the civil context. Although the dissent echoes this criticism, post, at 211-212, it may fairly be aimed only at those cases in which the Court reversed the conviction of the defendant in the law-changing decision and later determined that the rule would not be applicable retroactively, see, e. g., Desist v. United States, 394 U. S., at 254–255, n. 24; Stovall v. Denno, supra, at 300-301. The dissent has failed to cite a single civil case in which comparable inequitable treatment has occurred. In this case, for example, the Court did not provide a benefit to the litigants in Scheiner that was denied the petitioners here. See supra, at 188–190. Contrary to the dissent’s assertions, post, at 211-212, our use of the civil retroactivity principles does not result in the unequal treatment of similarly situated litigants. As Chevron Oil makes clear, the purpose of the doctrine is to avoid“'injustice or hardship’” to civil litigants who have justifiably relied on prior law. 404 U. S., at 107 (quoting Cipriano v. City of Houma, 395 U. S., at 706). In light of this aim, two parties are similarly situated if both relied on the old law before the date of the lawchanging decision. A litigant who has not relied on the old law is not similarly situated in a relevant way to one who has, regardless of whether both cases are pending on direct review.

As Griffith's rationale is unpersuasive in the civil context, we see no reason to abandon the Chevron Oil test. The Con

SCALIA, J., concurring in judgment

496 U. S.

stitution does not prohibit the application of decisions prospectively only, see, e. g., Solem v. Stumes, 465 U. S. 638, 642 (1984); Williams v. United States, supra, at 651 (opinion of WHITE, J.); nor has this Court ever held that nonretroactivity violates the Article III requirement that this Court adjudicate only cases or controversies. Compare Stovall v. Denno, 388 U. S., at 301, with Linkletter v. Walker, 381 U. S., at 622, n. 3, and Desist v. United States, supra, at 256 (Douglas, J., dissenting). The utility of our retroactivity doctrine in cushioning the sometimes inequitable and disruptive effects of law-changing decisions is clear.

The “inequities” the dissent alleges are caused by the doctrine are illusory. For these reasons, we decline the dissent's invitation to abandon our longstanding precedent.

Accordingly, in all respects apart from its disposition of 1987–1988 HUE tax payments, we affirm the judgment of the Arkansas Supreme Court.3

We are not, however, in a position to determine precisely the nature and extent of the relief to which petitioners are entitled for their 1987-1988 HUE tax payments. That determination, as we have already observed, lies with the state courts in the first instance. We therefore reverse and remand this aspect of the case to the Arkansas Supreme Court in order to permit it to determine the appropriate relief, not inconsistent with our decision today in McKesson, for petitioners' payment of 1987-1988 HUE taxes whether made before or after the date of our Scheiner decision.

So ordered.

JUSTICE SCALIA, concurring in the judgment.

I agree with JUSTICE O'CONNOR that Arkansas should not be held to have violated the Constitution in imposing its Arkansas Highway Use Equalization Tax (HUE) before our decision in American Trucking Assns., Inc. v. Scheiner, 483

3 As we state in McKesson, ante, at 29-31, the Court's appellate jurisdiction in a case such as this one is not barred by the Eleventh Amendment.

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SCALIA, J., concurring in judgment

U. S. 266 (1987), yet should be held to have violated the Constitution in imposing that tax after Scheiner was announced. My reasons, however, diverge from hers in a fundamental way, which requires some explanation.

I share JUSTICE STEVENS' perception that prospective decisionmaking is incompatible with the judicial role, which is to say what the law is, not to prescribe what it shall be. The very framing of the issue that we purport to decide todaywhether our decision in Scheiner shall "apply” retroactively-presupposes a view of our decisions as creating the law, as opposed to declaring what the law already is. Such a view is contrary to that understanding of “the judicial Power,” U. S. Const., Art. III, § 1, which is not only the common and traditional one, but which is the only one that can justify courts in denying force and effect to the unconstitutional enactments of duly elected legislatures, see Marbury v. Madison, 1 Cranch 137 (1803)—the very exercise of judicial power asserted in Scheiner. To hold a governmental Act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it; and when, as in this case, the constitutionality of a state statute is placed in issue, the question is not whether some decision of ours “applies” in the way that a law applies; the question is whether the Constitution, as interpreted in that decision, invalidates the statute. Since the Constitution does not change from year to year; since it does not conform to our decisions, but our decisions are supposed to conform to it; the notion that our interpretation of the Constitution in a particular decision could take prospective form does not make sense. Either enforcement of the statute at issue in Scheiner (which occurred before our decision there) was unconstitutional, or it was not; if it was, then so is enforcement of all identical statutes in other States, whether occurring before or after our decision; and if it was not, then Scheiner was wrong, and the issue of whether to "apply” that decision needs no further attention.

SCALIA, J., concurring in judgment

496 U. S.

I dissented in Scheiner, and in that case and elsewhere have registered my disagreement with the so-called “negative” Commerce Clause jurisprudence of which it is but one, typically destabilizing, instance. See Scheiner, supra, at 303-306 (SCALIA, J., dissenting); Tyler Pipe Industries, Inc. V. Washington State Dept. of Revenue, 483 U. S. 232, 259–265 (1987) (SCALIA, J., concurring in part and dissenting in part). This disagreement rests on more than my view (by no means mine alone) that that jurisprudence is a “quagmire,”id., at 259, quoting Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450, 458 (1959), that it has been “arbitrary, conclusory, and irreconcilable with the constitutional text,'” since its inception in the last century, 483 U. S., at 260, n. 3, quoting D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888, p. 234 (1985), and that it has only worsened with age. I believe that this jurisprudence takes us, self-consciously and avowedly, beyond the judicial role itself. The text from which we take our authority to act in this field provides only that “Congress shall have Power ... To regulate Commerce

among the several States,” U. S. Const., Art. I, $8, cl. 3. It is nothing more than a grant of power to Congress, not the courts; and that grant to Congress cannot be read as being exclusive of the States, as even a casual comparison with other provisions of Article I will reveal. See Tyler Pipe Industries, supra, at 261. The Commerce Clause, therefore, may properly be thought to prohibit state regulation of commerce only indirectly—that is, to the extent that Congress' exercise of its Commerce Clause powers pre-empts state legislation under the Supremacy Clause, Art. VI, cl. 2. When we prohibit a certain form of state regulation that does not conflict with any federal statute, we are saying, in effect, that we presume from Congress' silence that, in the exercise of its commerce-regulating function, it means to prohibit state regulation. 483 U. S., at 262–263. There is no other way to explain how state legislation that would (according to

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