SUPREME COURT OF THE UNITED STATES

No. 94–3

REYNOLDSVILLE CASKET CO., et al.,

PETITIONERS v. CAROL L. HYDE

on writ of certiorari to the supreme

court of ohio

[May 15, 1995]

Justice Kennedy, with whom Justice O'Connor joins, concurring in the judgment.

We do not read today's opinion to surrender in advance our authority to decide that in some exceptional cases, courts may shape relief in light of disruption of important reliance interests or the unfairness caused by unexpected judicial decisions. We cannot foresee the myriad circumstances in which the question might arise. In two classes of cases, courts already take account of these considerations: cases involving qualified immunity, which protects public officials' reliance on clearly established law, see Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982); and cases applying the Teague bar which, among other objectives, protects States that rely on the law existing at the time a conviction becomes final, see Teague v. Lane, 489 U. S. 288, 310 (1989). Cf. supra, at 8–9. As the Court seems to acknowledge, however, there may be other areas where the importance of the reliance interests that are disturbed precludes a remedy despite the retroactive application of the new rule. Supra, at 9–10. In my view, reliance on statutes of limitations falls into that category in certain circumstances, see Lampf, Pleva, Lipkind, Prupis, & Petigrow v. Gilbertson, 501 U. S. 350, 371–374 (1991) (O'Connor,

J., dissenting); id., at 379 (Kennedy, J., dissenting); American Trucking Assns., Inc. v. Smith, 496 U. S. 167, 221–222 (1990) (Stevens, J., dissenting); Saint Francis College v. Al-Khazraji, 481 U. S. 604 (1987); Chevron Oil Co. v. Huson, 404 U. S. 97 (1971), consistent with a long tradition of judicial authority to formulate rules ensuring fair and predictable enforcement of statutes of limitations, for instance, through rules pertaining to tolling or waiver. See American Trucking Assns., supra, at 221 (Stevens, J., dissenting) (citing Braun v. Sauerwein, 10 Wall. 218, 223 (1870)). When a hard case presents the question of our authority to deny relief in a retroactivity case, that will be soon enough to resolve it; for the law in this area is, and ought to be, shaped by the urgent necessities we confront when there is a strong case to be made for limiting relief despite the retroactive application of the law.

This is not a case where we need to address the issue whether a party is entitled to a full remedy in a retroactivity case, because that question arises only when the right is predicated upon a new rule of law, see United States v. Johnson, 457 U. S. 537, 549 (1982), and Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888 (1988), did not announce a new rule. In the civil context, a case announces a new rule of law "either by overruling clear past precedent on which litigants may have relied, . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed." Chevron Oil, supra, at 106; cf. Teague v. Lane, supra, at 301 (new rule in criminal context is one not "dictated by precedent existing at the time the defendant's conviction became final"). Respondent could not and does not attempt to argue that the Bendix decision overruled clear past precedent. Rather, she asserts its holding was not clearly foreshadowed. As the Court was explicit to acknowledge in Bendix, however, it was "[a]pplying well-settled constitutional principles," Bendix, supra, at 889, not a new legal theory or one that had not been foreshadowed by other precedents.

In Brown–Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573, 578–579 (1986), the Court identified two modes of analysis to evaluate state statutes under the Commerce Clause. The Court will consider the statute invalid without further inquiry when it "directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests," id., at 579; and it will balance the State's interest against the burden on interstate commerce when the statute "has only indirect effects on interstate commerce and regulates evenhandedly," ibid. (citing Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970)). Respondent concedes that the Pike balancing test is well established but claims its application to the Ohio tolling provision in Bendix was not predictable.

Her argument fails on two fronts. First, in Bendix the Court observed the Ohio tolling provision was so blatant an affront to interstate commerce that it might be considered invalid without engaging in the balancing test. See 486 U. S., at 891; see also id., at 898 (Scalia, J., concurring). Second, the balancing test provides a clear and certain standard in cases such as Bendix, see id., at 894–895; and even if it did not, the "application of precedent which directly controls is not the stuff of which new law is made," Harper v. Virginia Dept. of Taxation, 509 U. S. ___, ___ (1993) (slip op., at 3) (Kennedy, J., concurring in part and concurring in judgment); see Wright v. West, 505 U. S. 277, 309 (1992) (Kennedy, J., concurring in judgment) ("Where the beginning point is a rule of . . . general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent"); see also Keene Corp. v. United States, 508 U. S. ___, ___ (1993) (slip op., at 15) (case does not announce new rule where claims are resolved "under well-settled law"); Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481, 496 (1968) (case does not announce new rule unless it indicates "that the issue involved was novel, that innovative principles were necessary to resolve it, or that the issue had been settled in prior cases in a manner contrary to the view held by [the Court]").

As "a mere application of . . . existing precedent," Harper, supra, at ___ (slip op., at 3) (Kennedy, J., concurring in part and concurring in judgment), Bendix did not "decide . . . `an issue of first impression,'" Ashland Oil, Inc. v. Caryl, 497 U. S. 916, 920 (1990) (per curiam) (quoting Chevron Oil, supra, at 106), come "out of the blue," James B. Beam Distilling Co. v. Georgia, 501 U. S. 529, 556 (1991) (O'Connor, J., dissenting), or represent "an avulsive change which caused the current of the law thereafter to flow between new banks," Hanover Shoe, supra, at 499.

Bendix did not announce a new rule of law, so I would reverse on this ground, postponing extended discussion of reliance interests as they bear upon remedies for a case which requires us to address that issue.