I don’t think 2254(d) poses the problem you think it might under the Teague-as-constitutional-law reading (which, I agree, is quite wrong).

Say Teague really is constitutionally based–that it delineates the scope of the substantive constitutional right. I don’t think any principle of federal law would precludes Congress from offering a statutory remedy to only a subset of the class of people who had their constitutional rights violated. Federal habeas is not constitutionally mandated for state prisoners held pursuant to a judgment of conviction of a court of competent jurisdiction, and I would that that Congress has significant freedom to fashion this gratuitous remedy as it sees fit. (Incidentally, I think Stone v. Powell makes this point, even though it was not a congressional enactment. I would think everyone can agree that Stone precludes federal habeas for plenty of state prisoners whose 4th Amendment rights were violated, but that’s apparently no problem.)

It seems to me that the bigger problem would be if Congress wanted to go in the other direction, by expanding from Teague’s view of retroactivity. If Teague really delineates the scope of the substantive right, than prisoners whose convictions were final when a new rule is announced did not have any constitutional right violated.

But suppose there’s some sort of progressive revolution and Congress wants to actually broaden habeas by making more rules retroactive. I’m not sure that Congress could do that, under the constitutionally based reading. I doubt it could use its Section 5 power, because it would be hard to defend this expansion as some sort of prophylactic measure. And I don’t know what other source of power might authorize Congress to regulate the criminal procedure of state courts. But if Teague meant that the new right extends backwards in time forever, but we’re just not giving you a remedy, then that constitutional violation would create a hook that Congress could act on using its Section 5 powers.

I’m worried that there may be more at stake here than it looks like.

Excellent comment. As I pointed out in a comment to Orin’s post at Volokh Conspiracy, however, there is an unintended consequence if the Court holds that Teague is somehow constitutionally-based. A plausible argument could be made that Congress has already altered the rules of retroactivity in 28 USC 2254(d). The next case the Court might confront is the possible striking down by lower courts of 28 U.S.C. 2254(d) as an unconstitutional exercise of congressional power. In fact, the Court itself, I believe in Williams, noted the striking similarities between Teague and 2254(d).

If it is federal common law, on the other hand, Congress could change the retroactivity rule but states may indeed be bound to follow it depending on the power of the federal interest, state interest, etc. and the other issues surrounding the scope of federal common law. So we may have the strange situation where Congress can change the retroactivity rules and states cannot. It is strange indeed that a rule that derived in large part from a concern about comity between state and federal courts and interests–Teague–would be turned on its head to deny state courts the ability to determine the scope of retroactivity in their own courts!

My view on this case is that, if one believes in federalism, it is important to be consistent and take the good with the bad. In my view, therefore, it would be an infringement on state sovereignty to tell state courts they cannot apply their own rules of retroactivity in state court. Although I may be taking some liberties with his article, Anthony Bellia made a similar point several years ago in the Yale Law Journal.

Respondent also talked a great deal about consistency, but what about those states that don’t follow Teague? They will have one rule for retroactive application of state rights and another rule entirely for retroactive application of federal rights. Can you imagine a state court saying in an opinion that if this was a state right, you could have relief, but because this is a (arguably more important) federal constitutional right, the new right has no retroactive application to you?

As the opinion itself says, “The relevant frame of reference, in other words, is not the purpose of the new rule whose benefit the [defendant] seeks, but instead the purposes for which the writ of habeas corpus is made available.”

It appears from oral argument that Justices Kennedy, Scalia, and Roberts (at least) view Teague entirely differently, as a “metaphysical” limit on the substantive right itself. In other words, what Teague really meant to say was “the right didn’t exist at the time of your trial, so it wasn’t violated, so of course you have no remedy on habeas.”

That is, to me, a surprising re-reading of Teague. But it’s a defensible position.

Combining that position with Griffith, however, gets strange. Justice Scalia’s take at oral argument was this: “The right didn’t exist at the time, but as an equitable matter, we’ll make it available for people appealing convictions on direct review.”

That’s also defensible. But if as an equitable matter the Supreme Court can make it available to more people than are really entitled, why can’t Congress, as an equitable matter, make it available to still more prisoners? Why can’t states?

The position seems to be: We, as a matter of grace, may give this benefit to more people than actually deserve it. But no one else has that power (except prosecutors, perhaps?).

That is a remarkable position to take. It reminds me a little of City of Boerne v. Flores, but even stranger.

I appreciate your comment very much, but the petitioner is arguing that there should be room for state law to determine the retroactivity of new rules, both state and federal. It seems to me that this should be characterized as a matter of procedure or remedy, but you are also correct in your implication that it can also be considered a question of substantive law. I just think that the federal interest is extremely weak when you are talking about a state prisoner convicted under state law using state postconviction relief in state court to challenge his conviction. As I said, the only federal interest is the federal substantive rule at issue, but presumably the states will apply the same retroactivity principles to both state and federal rules and, of course, the state court’s application of their own retroactivity rules will apply only to prisoners within that state.

I think that what might really be in the background here are cases like Apprendi or Blakely because we are talking about perhaps quite a few prisoners that may not have had sentencing factors determined by a jury. The Justices might feel quite a bit more comfortable deciding issues of criminal procedure if there are not the unintended consequences accompanying the potential release of scores of state prisoners, though I would argue that this is entirely a state prerogative. By the way, I think it highly likely that most states would adopt the Teague framework as a matter of state law anyhow. This seems like a pretty easy case to me on first principles, but it is made more complicated by the real-world implications of the decision (though perhaps those are overestimated).

I think it may be restating what the others have said, but it’s an easy case depending on whichever lens you look at the case from. When I looked at the materials in this case I gravitated to David’s side – I had thought Teague was a judge-made rule for federal courts that flowed from the Supreme Court’s supervisory powers over the lower federal courts. Those types of rules (i.e. Brecht) aren’t binding on state courts because the source of power is different. Respondent argued – and got significant traction from Kennedy/Roberts – is just as you said, retroactivity is necessarily a question of the scope of a constitutional right. I had simply thought it was a matter of who it applies to with the pragmatic understanding that you have to stop application at one point or another. Arguably that’s what Teague itself was all about with the comity/finality stuff.

I think one brief hypo essentially decides this case one way or another on what lens you see retroactivity/Teague from: Could Congress pass a law that sets a retroactivity rule harsher than Teague, such as just Griffith with none of the Teague exceptions. (Exclude Due Process “floors” for now.) If Congress could set the policy of the lower federal courts, then you couldn’t say that Teague is based in the Constitution and retroactivity is necessarily wrapped up in the substance of the right as Roberts argued. If Congress cannot alter Teague, then the Court was imposing a Constitutional rule.

I don’t think that’s a hypo I would have used before this Court though, since they may have been more than happy to exert muscle to elbow out Congress in this area. But to me, I think it’s clear that Congress could alter Teague, just as the States can do as they please here.

As a very last note, there also is an oddity here in this case because Minnesota actually did apply Teague. Even if petitioner wins, the Court can really only vacate and remand and the Minnesota Supreme Court could decide to apply Teague anyway. It’s certainly cert worthy but maybe it would have been better to have granted cert in one of the cases that actually refused to apply Teague and instead applied Linkletter or some other standard.

I entirely agree with you–that is, I do not believe that the Danforth case is very difficult. I find it hard to believe that a state court cannot fashion a rule of retroactivity to apply to a state prisoner convicted in state court. The only federal interest at stake is the role of the federal constitutional rule of Crawford, but a state court is not changing the substantive rule in holding that, as a matter of procedure, state law requires retroactive application of federal rules on state post-conviction review. Moreover, if the federal rule is incorrectly interpreted by a state court in granting state postconviction relief, then the Supreme Court would clearly have jurisdiction over the state court’s interpretation of the federal rule, just not over application of the state’s retroactivity rule.

I had the opportunity to work on this case as a consultant for the federal public defenders–or petitioner in this case–and I was convinced from the start that if federalism is to mean anything, then state courts should be free to fashion their own remedies or procedures in state postconviction proceedings. That is especially so, though this did not come up in oral argument, since states are not even required to have postconviction relief available (i.e. the argument made in the Kansas brief).

In working on this case, I was most concerned about Justice Kennedy’s reaction and my prediction seems to be on target in light of the oral argument transcript. I was a bit surprised by the thrust of the questions from Justice Scalia and Chief Justice Roberts, but it is awfully hard to tell from oral argument transcripts where Justices are likely to fall when the opinion is released. I am most interested in how Justices Thomas, Breyer and Alito will vote in this case because there are conflicting ideological considerations at play in this case and they were relatively silent during oral argument. On the one hand, there are federalism concerns clearly at play. On the other hand, we are talking about perhaps opening the floodgates for retroactive application of federal rules in criminal cases. Thus, I would not be surprised to see an unconventional lineup in this case (i.e. similar to the Apprendi five). My impression from the oral argument transcript is that Stevens, Ginsburg, and Souter seemed to be sympathetic to petitioner’s positions, but that Kennedy, Roberts, and Scalia may go the other way. It may be the case that the outcome in this case will come down to Breyer, Thomas, and Alito but we will have to wait to find out.