In James B. Beam Distilling Co. v. Georgia, the Supreme Court rejected the propriety of employing “selective prospectivity” in civil litigation: when in a civil case the Court announces a new rule of law and applies the new rule in that case, the Court concluded that the judiciary is obliged to apply the new rule to the parties in other pending civil actions as well.1 Justice Antonin Scalia explained that in his view the employment of selective prospectivity amounts to an unconstitutional judicial exercise of the power to make law. He then continued in a rather curious vein.
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 tomor-
row be.2
Justice Byron R. White was not amused. While he agreed with the decision to abandon selective prospectivity in civil cases, he saw no merit in Scalia's distinction: since judges in a real sense do make law, White thought it bizarre, perhaps even offensive, to pretend otherwise, and Scalia's remarks amounted to the suggestion that “judges (in an unreal sense, I suppose) should never concede that they do [make law] and must claim that they do no more than discover it, hence suggesting that there are citizens who are naive enough to believe them. … I am quite unpersuaded by this line of reasoning.” As Justice Sandra Day O'Connor put it, “Of course, we 'make' law as we go along.”3
-103-
