# James B. Beam Distilling Co. v. Georgia > Supreme Court of the United States · June 20, 1991 · 501 U.S. 529 URL: https://www.frixlaw.com/law-library/cases/9432365 ## Case - **Full name:** JAMES B. BEAM DISTILLING CO. v. GEORGIA Et Al. - **Court:** Supreme Court of the United States - **Decided:** June 20, 1991 - **Citations:** 501 U.S. 529; 91 Daily Journal DAR 7305; 59 U.S.L.W. 4735; 91 Cal. Daily Op. Serv. 4665; 111 S. Ct. 2439; 115 L. Ed. 2d 481; 1991 U.S. LEXIS 3624 - **Precedential status:** Published - **Opinion:** Concurrence by Scalia - **Judges:** Blackmun, O'Connor, Scalia, Souter, White - **Cited by:** 701 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Questioned by Robinson v. City of Seattle, 119 Wash. 2d 34 (1992). - Negative treatments: 1 - Distinguished by: 2 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9432365 ## How later opinions describe it (automated extraction) - explaining that, “It is only when the law changes in some respect that an assertion of nonretroactivity may be entertained, the paradigm case arising when a court expressly overrules a precedent upon which the contest would otherwise be decided differently and by which the par… - holding that because the Supreme Court in Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984), had applied the legal rule it announced to the litigants in that case, courts were precluded from determining that Bacchus could be applied purely pros… - holding that it is error to refuse to apply a rule of federal law retroactively after the case announcing the rule has already done so: “principles of equality and stare decisis here prevailing over any claim based on a Chevron Oil analysis” - stating that retroactive application of judicial decisions is “overwhelmingly the norm” and is “in keeping with the traditional function of the courts to decide cases before them based on their best current understanding of the law” - explaining that the Bacchus Court necessarily applied its rule to the litigants because it remanded for further consideration, and remand would have been unnecessary had the rule been applied prospectively ## Opinion text Justice Scalia, with whom Justice Marshall and Justice Blackmun join, concurring in the judgment. I think I agree, as an abstract matter, with Justice Souter’s reasoning, but that is not what leads me to agree with his conclusion. I would no more say that what he calls “selective prospectivity” is impermissible because it produces inequitable results than I would say that the coercion of confessions is impermissible for that reason. I believe that the one, like the other, is impermissible simply because it is not allowed by the Constitution. Deciding between a constitutional course and an unconstitutional one does not pose a question of choice of law. *549 If the division of federal powers central to the constitutional scheme is to succeed in its objective, it seems to me that the fundamental nature of those powers must be preserved as that nature was understood when the Constitution was enacted. The Executive, for example, in addition to “tak[ing] Care that the Laws be faithfully executed,” Art. II, § 3, has no power to bind private conduct in areas not specifically committed to his control by Constitution or statute; such a perception of “[t]he Executive power” may be familiar to other legal systems, but is alien to our own. So also, I think, “[t]he judicial Power of the United States” conferred upon this Court and such inferior courts as Congress may establish, Art. Ill, § 1, must be deemed to be the judicial power as understood by our common-law tradition. That is the power “to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), not the power to change it. I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense “make” law. But they make it as judges make it, which is to say as though they were “finding” it — discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be. Of course this mode of action poses “difficulties of a . . . practical sort,” ante, at 536, when courts decide to overrule prior precedent. But those difficulties are one of the understood checks upon judicial lawmaking; to eliminate them is to render courts substantially more free to “make new law,” and thus to alter in a fundamental way the assigned balance of responsibility and power among the three branches. For this reason, and not reasons of equity, I would find both “selective prospectivity” and “pure prospectivity” beyond our power. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9432365. Public record. Not legal advice.