American Trucking Associations, Inc. v. Smith
In American Trucking Associations, Inc. v. Smith, 496 U.S. 167, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990), Justice O'Connor, writing for a plurality of four justices, explicitly refused to extend Griffith to civil cases, and used the Chevron Oil test to limit retroactivity of the Court's decision in an earlier case invalidating highway use taxes under the Commerce Clause. Id. at 179, 110 S.Ct. 2323.
Four other justices rejected the plurality's approach to retroactivity as "anomalous" and refused to hold that "the law applicable to a particular case is that law which the parties believe in good faith to be applicable to the case." Id. at 219, 110 S.Ct. 2323 (Stevens, J., joined by Brennan, J., Marshall, J., and Blackmun, J., dissenting). Justice Scalia, concurring in the judgment because he believed that the new rule of law was incorrect, explicitly disagreed with Justice O'Connor's retroactivity analysis, stating that "prospective decisionmaking is incompatible with the judicial role, which is to say what the law is, not to prescribe what it shall be." Id. at 201, 110 S.Ct. 2323 (Scalia, J., concurring).
In American Trucking Ass'ns, Inc. v. Smith, 496 U.S. 167, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990), a four-Justice plurality recognized that "retroactivity of decisions in the civil context 'continues to be governed by the standard announced in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971)." Id. at 178, 110 S.Ct. at 2331 (plurality opinion) (quoting Griffith v. Kentucky, 479 U.S. 314, 322 n. 8, 107 S.Ct. 708, 712 n. 8, 93 L.Ed.2d 649 (1987)).
However, five Justices in American Trucking expressed their disagreement with the plurality's application of the Chevron Oil test to determine the retroactive application of judicial decisions in the civil context. Although Justice Scalia concurred in the judgment because of his belief that the decision which was not being applied retroactively was wrongly decided, his position on the retroactivity of judicial decisions is fundamentally at odds with the plurality's. According to Justice Scalia, "prospective decisionmaking is incompatible with the judicial role, which is to say what the law is, not to prescribe what it shall be." Id. 496 U.S. at 201, 110 S.Ct. at 2343 (Scalia, J., concurring).