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• “prospective overruling”
• Prospective overruling is a practice by which the Court would not apply its ruling retroactively to past statutes and actions but only prospectively to future ones. The advantage of prospective overruling is that it allows the justices to respect past reliance where necessary while nevertheless moving the law decisively to the original meaning.
• Scalia’s most important legal argument is that prospective overruling is beyond the judicial power of Article III because judges must base their rulings on what the law is, not on what it will be.
• Scalia’s argument arose in the aftermath of the Warren Court, which utilized prospective overruling when it overruled precedents, particularly in criminal law, on the basis of living constitutionalism. Scalia thus not surprisingly argued against prospective overruling on the ground that it facilitated judicial activism.
• Scalia appears to argue that at the time of the Framing, justices did not engage in prospective overruling.

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