John Marshall Harlan II

“ It is hard to believe that any lawyer worthy of the name could, after reading Silverman, rely with confidence on the continuing vitality of the Goldman rule. Nor is it by any means clear to me that it would have been improper for a lower court to have declined to follow Goldman in the light of Silverman. [4] Given the deterrence purpose of the expanded habeas corpus, it thus could be persuasively argued that the Katz rule should be applied to all cases which had not become final at the time Silverman was decided. ”

“ Nevertheless, my views on this score have not prevailed, and pending re-examination of the scope of habeas corpus, I believe myself obliged to consider on its own bottom the retroactivity problem which Noia has spawned, since it is a matter of the greatest importance if the integrity of the federal judicial process is to be maintained in this era of increasingly rapid constitutional change. ”

“ Indeed, I have concluded that Linkletter was right in insisting that all 'new' rules of constitutional law must, at a minimum, be applied to all those cases which are still subject to direct review by this Court at the time the 'new' decision is handed down.
Matters of basic principle are at stake. In the classical view of constitutional adjudication, which I share, criminal defendants cannot come before this Court simply to request largesse. ”

“ We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a 'new' rule of constitutional law.
The unsound character of the rule reaffirmed today is perhaps best exposed by considering the following hypothetical. ”

“ What has already been said is, from my standpoint, enough to dispose of the case before us. Ordinarily I would not go further. But in this instance I consider it desirable and appropriate to venture some observations on the application of the retroactivity doctrine in habeas corpus cases, under the prevailing scope of the 'Great Writ' as set forth in this Court's 1963 decision in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, and in today's decision in Kaufman v. ”

“ United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928) ; Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942) ; On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952) .↑ After Silverman was decided, we were careful to frame our decisions in such a way that a direct consideration of the 'trespass' doctrine could be avoided. In Lopez v. United States, 373 U.S. 427, 439, 83 S.Ct. 1381, 1388, 10 L.Ed.2d 462 (1963) , we noted that: 'The validity of (Olmstead and Goldman) is not in question here. ”