Backdoor Balancing and the Consequences of Legal Change

Abstract

The U.S. Supreme Court has employed various mechanisms to blunt the systemic impact of legal change. The Warren Court balanced the interests advanced by new rules against the disruption of their retroactive application and frequently limited new rules to prospective effect. The Rehnquist Court decisively rejected this approach in the mid-1990s and committed itself to full adjudicative retroactivity as to pending cases. This Article argues that, although the Court slammed a door, it subsequently opened a window. The Court has spent the intervening decades devising ostensibly independent and unrelated doctrines to mitigate disruption. Despite the Rehnquist Court’s insistence that these doctrines do not relate to retroactivity, they reflect the same balance and, in almost every case, yield the same results as Warren-era balancing. This Article makes the descriptive case that the balancing of interests has survived intact and the normative case that finding a mechanism for softening the blow of legal change promotes respect for existing rules and the Court’s institutional legitimacy. Finally, this Article explores how the Court’s sub silentio balancing is likely to play out in the next big retroactivity challenge, the Appointments Clause context post-Lucia v. SEC.

Keywords: Federal Courts, Retroactivity, Precedent, Article III