Analysis: ‘Creating’ or ‘declaring’ rights
Analysis
Perhaps it is not enough to gladden the hearts of true “originalists,” but a clear majority of the Supreme Court has newly acknowledged that, when it comes to constitutional rights, they always existed and did not just emerge out of modern judicial creativity. That concept, most closely identified with the jurisprudence of Justice Antonin Scalia, is a basic rationale behind Wednesday’s 7-2 decision in Danforth v. Minnesota (06-8273) — a decision described in this earlier post.
To Justice Scalia (as he wrote 18 years ago), any notion that the Court creates the law — including a right — as opposed simply to declaring “what the law already is,” runs counter to judicial power as the Constitution defines it. The only thing that can justify judicial review, including the authority to strike down laws passed by “duly elected legislatures,” Scalia said then, is the view that the Supreme Court merely finds that something is already embedded in the Constitution. It is, for him, a variant of the originalist persuasion — that is, according to him, the view that “the Constitution does not change from year to year….To hold that a government act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it.”
Justice John Paul Stevens, who wrote the Danforth ruling, is not known as a devotee of the unchanging Constitution. But his opinion on Wednesday quotes approvingly from Scalia’s past remarks and comments that, when the Court announces a new rule of criminal procedure, protecting a right, it is not announcing a rule “of our own devising.” He adds that “the source of a ‘new rule’ is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule.” The language varies somewhat from Scalia’s, but the core concept is the same.
What makes this approach palatable to Justice Stevens (and the Court’s other liberal members, who joined his Danforth opinion) is that it fits well with a long-term project that Stevens has pursued. That is to draw a clear line of separation between a “right” and a “remedy” for a violation of that right. It is the business of the Supreme Court to say what rights are in the Constitution — that is, to say when a constitutional violation has occurred – but others may share in the task of implementing that right with remedies, according to Stevens’ view. This flexibility at the remedy stage enables a more creative, and perhaps even more expansive, view of how to fix the constitutional violation.
This is precisely the project that was at work in the Danforth decision. When the Court declares that a right exists for those accused or convicted of crime, and that right is asserted in a state criminal case, the states remain free to “remedy wrongful state convictions” — in this case, the states are allowed to decide for themselves whether to apply the right to earlier cases, even though the Supreme Court has ruled it would not apply to earlier federal cases. If, as in this case, the declared right (a variant of the right to confront one’s accusers) is one that the Court has refused to apply retroactively, Stevens wrote, “does not imply that there was no right and thus no violation of that right at the time of the trial — only that no remedy will be provided in federal habeas courts.” A state that now decides that it would make that right retroactive is not defying some binding federal law, Stevens said, but is only following its own law on retroactivity principles.
The rationale of the Stevens opinion for the Court is more consequential than the actual result. As Stevens pointed out, the majority of the states already feel free to give broader effect to Supreme Court declarations of criminal law rights than the Justices have done, and only three states take the contrary view — that is, that they must deny retroactivity if the Supreme Court has done so.
One thing not said in the Stevens opinion — and the omission is noted by dissenting Chief Justice John G. Roberts, Jr. — is whether Stevens would now permit a state, with its new-found control over retroactivity doctrine and remedies, to actually use it in the opposite way: that is, could it refuse to make a new criminal law right retroactive if, in federal cases, the Supreme Court did make it retroactive? Stevens said in a footnote that that was not at issue, and so the Court said nothing about it.
Nevertheless, it is not clear that that is a real issue. The Court has not found a new criminal law right to be retroactive in federal cases and, indeed, regularly refuses to do so, and thus no state is likely to be faced with the choice that the Chief Justice posited. But, even assuming that the Court did make retroactive some newly declared criminal law right, it does not necessarily follow as a logical matter that the Stevens majority, if faced with a state’s refusal to go along in state cases, would permit it to limit an inmate’s right to claim the new right in a habeas challenge. After all, making a new criminal rule apply in federal habeas would mean that, when state inmates pursued a habeas challenge by invoking the new right and its retroactivity, they could benefit from the right and the remedy the Supreme Court itself devised: retroactivity.
I think this analysis misses another very important rationale for Stevens’ vote. Stevens has always maintained that state courts can expand federal rights and the Supreme Court has no interest in reviewing those decisions. See Stevens’ dissent in Michigan v. Long, 463 U.S. 1032 (1983). That dissent previews much of the language in Stevens’ majority opinion in Danforth and shows that Stevens would distinguish this case from Roberts’ hypo.
Comment by Andrew Brasher — February 20, 2008 @ 4:51 pm
I simply think the whole retroactivity issue is a boondoggle. I respect the notion that sometimes it’s important for the law and judicial decision to be final. But there is a huge difference between refusing to apply a decision retroactively when $1,000 is at stake and when a person’s life is at stake. 26 years is a long time to be in prison for a judicial “ooopsie”.
Comment by Daniel Thomas — February 20, 2008 @ 6:02 pm
Bockting isn’t in prison for a “judicial oopsie.” He is in prison for raping a 6 year old girl.
Should he be let out because we now have a new interpretation of the Sixth Amendment that does not produce trials that are necessarily any more fair or reliable that what we had before?
The girl’s mother called me after the decision. She was very, very relieved. Could you look her in the eye, Daniel, and tell her this is about a “judicial oopsie”?
Comment by Kent Scheidegger — February 20, 2008 @ 7:39 pm
I could.
Comment by Jim Smith — February 20, 2008 @ 7:43 pm
Andrew,
Thanks for the citation , the essence of Stevens reasoning is indeed very similar in that dissent. Who would have thought that lone dissent would turn out to be a majority opinion join by 6 other justices? I’m pretty sure O’connor and Rehnquist would have dissented had they been on the court.
Daniel,
What standard do you propose? Are you saying we should fashion a retroactivity rule that works on a case by case basis? How would that work? No retroactivity for $1000 fine but retroactive for 5 years in prison?
Comment by Chee Foong Chew — February 20, 2008 @ 7:46 pm
How ironic that this should arise in the context of Crawford, which overruled Roberts, and in such a way that some statements inadmissible under Roberts were now admissible and some statements admissible under Roberts now were not. They employ incompatible modes of analysis. Is it that two separate Courts have declared a different same thing? Could it be that rights are neither declared nor created, but are the products (or not) of the prevailing interpretation of the Constitution?
Kent, are you seriously suggesting that the rights to which a person is entitled should depend on the crime with which he is charged? Sentencing differences between crimes are not enough to satisfy your bloodlust? The Enron victims want their life savings back, that would make them very relieved, but it’s the function of the judiciary to tell them that they’ve gotten all they’re going to get, the bankers of course cannot be held responsible.
Comment by Roger Friedman — February 21, 2008 @ 12:05 am
Yes, Ken, I could. The question isn’t whether a new trial is more or less fair; that’s a red herring. Our system of justice does not promise a fair trial; it promises a constitutional one. The SC admitted that his trial was not a constitutional trial; that’s a broken promises not just to the defendent but to the whole country. The only disagreement is on the remedy for this unconstutional trial. How does the mother feel knowing that a man is behind bars for 26 years convicted of a crime that was done by a kangaroo court? Did you ever ask her this question? An honorable man would have.
I have great compassion for the idea of finality in trials. One of the best passages in Dickens is the opening to Bleak House. I am well aware of the dangers of legal decisions never being final. At the same time, I have a difficult time accepting that a man should be in jail for 26 years for no other reason than finality. It is important that the law be settled; but to the extent that it is within our powers, the law should also be settled right.
We already grade crimes on their gravity. It seems to me that the graver the crime, the more sensitive we should be to constitutional violations because the consequences are so much greater for everyone concerned. My own hope is that the state judges do order a new trial. Not because I think it’s fair. Not because I think it’s just. But because I think the constitution requires it. I don’t believe in letting the guilty go free but also I don’t believe in mangling the constitution in the ego-stroking pursuit of vapid do-goodism.
Comment by Daniel Thomas — February 21, 2008 @ 12:39 am
Once again, Roger, your comment on my comment has so little to do with what I actually wrote that I hardly know where to begin.
Wanting a man who rapes children to remain in prison so that he will not rape any more children hardly constitutes “bloodlust.” I’ll just leave it at that.
Comment by Kent Scheidegger — February 21, 2008 @ 12:45 am
“How does the mother feel knowing that a man is behind bars for 26 years convicted of a crime that was done by a kangaroo court?”
She does not “know” that because it is not true. By no stretch of the imagination was Bockting’s trial a “kangaroo court.” No, an honorable man would not ask a question with a false premise.
Bockting is not in prison “for no reason other than finality.” He is in prison because he raped a 6 year old girl. Crawford was not based on any unreliability of the previous rule, and the change does not cast doubt on Bockting’s guilt.
No, the constitution does not require that every criminal case be reopened every time the interpretation of the rules changes.
Comment by Kent Scheidegger — February 21, 2008 @ 12:54 am
Dan, your comments are just silly and resemble a polemic that would come from the academy. The bottom line is that Bockting’s trial was conducted in a manner that comported with the then understanding of what the Constitution required. That makes your charge of a “kangaroo court” absurd.
Your statement that the Constitution requires a new trial is beyond absurd. The Constitution does not require that this criminal judgment be ripped open by subsequent developments in the law.
You fetishize a so-called devotion to the Constitution. That betrays your real motivation in making your post–self-congratulatory moral preening.
Comment by Sean O'Brien — February 21, 2008 @ 2:01 am
It seems to me that Kent and Daniel are arguing more about remedies than about the law. Unless I’m missing something, Daniel is arguing that any trial conducted in violation of the Constitution is void and must be done over. But that is not realistic. You can have a trial where one part was done wrong — say, constitutionally impermissible evidence is admitted — but yet this mistake is essentially harmless because there was plenty of other evidence of guilt. There is no reason to redo the trial, even if the convicted person is on death row. Courts recognize this all the time.
In other words, the remedy should be different based on whether the trial was fundamentally unfair or whether it was merely constitutionally infirm in a respect that had no material effect on the outcome.
Comment by James N. Markels — February 21, 2008 @ 8:53 am
When a statute, such as the Religious Freedom Restoration Act (RFRA), 42 USC 2000bb, says it is fully retroactive to any implementation of federal law, how would that be treated in a habeas corpus where a religious claim was made and rejected in a prior drug case? Remember, Employment Division v. Smith, 494 US 872 (1990), was a drug case and RFRA was enacted to provide a statory right the Supreme Court refused to recognize. And, more recently in Gonzales v. O Centro, 546 US 418 (2006), it was a drug case in which the Supreme Court applied RFRA in holding the drug law unconstitutional as applied to O Centro.
Comment by Carl Olsen — February 21, 2008 @ 11:24 am
James. You are missing something. I specifically disavowed the notion that “any trial” in violation of the constitution needs to be done over.
You write: “In other words, the remedy should be different based on whether the trial was fundamentally unfair or whether it was merely constitutionally infirm in a respect that had no material effect on the outcome.” I don’t agree. First, the issue isn’t whether the trial was unfair; that’s a loaded term that is best avoided. The issue is whether the trial successfully safe-guarded the constructional rights of all parties. To focus on the outcome of the trial in terms of its judgment entirely ignores the issue of substantive due process. If the process is constitutional then the outcome is by definition constitutional and that is as close to “fairness” as we can ever hope to get as human beings. This is why I reject a focus on outcomes. Determining whether a constitutional violation has a significant affect on the outcome is an endeavor in judicial mysticism.
I argue that a constitutional violation is a constitutional violation and the notion that there are grades of constitutional violations is a sick legal formalism. I think the better perspective is to look at the pragmatic affect of the violation; that is, the gravity of the crime in question. A constitutional violation in a case concerning verbal assault is minor and a constitutional violation regarding child rape is major. All constitutional violations harm the body politic but the harm should not be measured based upon some legal formalism but upon the real world consequences to the defendant. This is so not because there are no real world consequences to the alleged victim or even to the administration of justice as a system. It is so because it is the defendant who had his constitutional rights violated.
What really bugs Ken and Sean is that I insist on one simple fact: that the defendant is a real person too, not an object of laws. Child rape is a cruel crime but a defendant is innocent until proven guilty and that means proven guilty in a constitutionally sound trial. To hold our constitution and the fate of the defendant as a human being in the hands of the judge’s understanding of the constitution at any particular point in time should be unacceptable to all decent human beings. Some major errors are forever out of our ability to correct simply because we only recognize the error after it is beyond our power to correct, but when we have the opportunity to correct errors human decency requires that we do so. This is the concrete purpose of the appeals process. The SC has found a constitutional violation. The consequences of ignoring that violation for the defendant are huge. He deserves a new trial.
Comment by Daniel Thomas — February 21, 2008 @ 1:39 pm
Daniel: You must admit that it is a bit snide that you would prefer to avoid using a term like “unfair” when you already sallied forth with the term “kangaroo court.” I also find it disappointing that you would insist that we not “reject a focus on outcomes” when your position, that the magnitude of the consequences to the defendant should govern whether a trial must be vacated, expressly focuses on the outcome as well!
Frankly, the outcome I mentioned in my prior post — namely, whether the constitutional violation would affect the result of the trial — saves judicial resources and lessens the “gotcha” form of litigating that has become all-too-prevalent these days. Your rule would waste judicial resources through needless additional trials and endless wrangling over whether a given party has suffered enough negative “consequences” to warrant the full remedy. I agree, the defendant is a real person, but they do not stand in a vaccuum.
Comment by James N. Markels — February 21, 2008 @ 3:10 pm
Correction: delete the word “not” before “reject a focus on outcomes” in my post. My apologies.
Comment by James N. Markels — February 21, 2008 @ 3:11 pm
Daniel Thomas wrote:
“I argue that a constitutional violation is a constitutional violation and the notion that there are grades of constitutional violations is a sick legal formalism. I think the better perspective is to look at the pragmatic affect of the violation; that is, the gravity of the crime in question. A constitutional violation in a case concerning verbal assault is minor and a constitutional violation regarding child rape is major.”
What? You chide James for focusing on outcomes, but then do … exactly that, save for you, the “outcome” isn’t the severity of the constitutional violation, it’s the severity of the crime, and hence the sentence, the defendant faces. Sheesh!
As for pragmatism, here’s one practical, real-world effect of your recommended approach that no one should like: it means that the most heinous criminals, the child rapists, murderers, etc. will have more constitutional protection and will have more judicial resources spent on them then the minor criminals.
Comment by Stephen Jaros — February 21, 2008 @ 7:31 pm
James. Yes, you are right. I used the word “kangaroo court” to tweak Ken’s nose because he is always using outrageously loaded terms and two can play that game (sheepish grin). You are not Ken so I was taking a different course. But you are right to call me out on that.
As for the issue of outcomes, the serverity of the crime is not an outcome of the trial; it is antecedant to the trial. So I see no conflict there. If one wants to be picky, I am focused on outcomes but it is the outcome of the choice the prosecution makes in its charging decision; I am not concerned with the affect of the constitutonal violation on the outcome of the trial.
Stephen, I agree with all my heart. You want me to be offend for defending a rapist and I am not. BruceM over at the Volokh Conspiracy put it exactly right “the rule of law should be most solicitous of those defendants who are most reviled.”
Comment by Daniel Thomas — February 21, 2008 @ 8:27 pm
Daniel, yes, the severity of the crime is antecedent to the trial, but the sentence is an outcome, and i believe that the severity of the sentence is what you are concerned with here.
I don’t want you to be offended for defending a rapist, but i’d like you to think you are bending way too far backward, going beyond what the constitution requires. Beyond that, the Rule of Law is largely about “formalism”, so i’m not sure why you use that term disparagingly. The very constitutional defect in the defendant’s first trial that you believe merits a new trial is a procedural violation, the essence of formalism IMO.
And an important component of that is impartiality, which your proposal, dependent as it is on calibrating determinations of trial constitutionality with the severity of the sentence, unjustifiably violates. What principle can it stand on? How would you explain to Mr. Assault and Battery doing 9 months time that the constitutional defect in his trial doesn’t merit a new trial for him, but that the EXACT SAME defect in Mr. Child Rapist’s trial merits him a new trial?
Let me speculate: I think that the root reason here is that you know it would be impractical, would cause the system to grind to a halt, if the same principle were applied to all cases and trials. So you want to reserve it for the real bad criminals. But to me, ANY principle of trial constitutionality that, if applied to all trials, would cause the system to grind to a halt, is by definition a principle that isn’t actually mandated by the Constitution, since the Constitution was a document that as about practical governance.
Comment by Stephen Jaros — February 21, 2008 @ 11:05 pm
“What really bugs Ken and Sean is that I insist on one simple fact: that the defendant is a real person too…”
“You want me to be offend for defending a rapist…”
Daniel, you seem to be very confident in your ability to discern what others are thinking. Given that you are 0 for 2 in this thread, a bit less confidence is in order.
These kinds of snarky remarks do not make your argument more persuasive, but quite the opposite.
Comment by Kent Scheidegger — February 21, 2008 @ 11:51 pm
Daniel, the real problem about your argument, to me, is that it clearly does not support your conclusion. To wit, you said, “I argue that a constitutional violation is a constitutional violation and the notion that there are grades of constitutional violations is a sick legal formalism. I think the better perspective is to look at the pragmatic affect of the violation[.]” Problem is, your approach of looking only at the punishment meted out to determine whether a new trial is warranted clearly advocates “grades of constitutional violations.” The same constitutional violation in one trial is a big deal, but is not in another. You’re just using another measure to determine the grade.
Further, the “pragmatic effect” of the violation is clearly NOT what you are looking at, since it is not pragmatic to only take in the smallest picture — what the felon’s position is — when determining the overall effect. It cannot get any more pragmatic than to consider whether the constitutional violation made a difference in the outcome of the trial, and decide to vacate the trial on that basis. Your argument is based entirely on principle, not pragmatism. Thus, your focus on “the defendant is a real person, not an object of laws.” While I admire such a principle, it is simply not tenable in the way you would apply it.
Comment by James N. Markels — February 22, 2008 @ 8:13 am