Commentary: What does the Supreme Court really do?
(NOTE: For a fuller discussion of the legal issues at stake and the factual background of the case, look here at SCOTUSwiki.)
It was far from the biggest case of the Term, and well over half of the spectator and lawyer seats were empty, but those who did show up for Danforth v. Minnesota on Wednesday were treated to a lively and wide-ranging inquiry into just what it is that the Supreme Court does when it finds that a new constitutional right exists. As if conducting an oral exam in basic constitutional law, the Justices explored whether a right that they announce was, in fact, always there though previously undiscovered, or whether it simply emerged as a brand-new product of the judicial imagination. Curiously, some of the Justices who believe that the Constitution means only what it did in the beginning (the “originalist” persuasion) were arguing that the Court certainly can and does create new constitutional meaning, while some of those who believe in a “living Constitution” (it changes with the times) were suggesting that a new right is simply an old right that always was. It was, for a time, purely “metaphysical,” as Justice Stephen G. Breyer suggested unapologetically. But it could have real-world consequences for individuals accused or convicted of crime.
The exchanges — it actually was a debate — among the Justices came so swift and came with such energy that one of the arguing lawyers was left simply silent at the podium for a noticeable spell — only to have the silence turned into a humorous moment when Chief Justice John G. Roberts, Jr., quipped: “I think you’re handling these questions very well.”
The Danforth case is what non-lawyers would think of as a case about a legal technicality. Put in lay language, the issue is this: if the Supreme Court recognizes a new right, but says some people do not get to benefit from it, can state courts say, “Oh, yes, they do”? Put as lawyers would, the issue is: if the Supreme Court recognizes a new rule of criminal procedure, but says it will not apply retroactively, are state courts free to say that — at least in our state — it will apply to cases that were final before the ruling came down? It is, in short, all about retroactivity doctrine, and how it works.
The Justices who were most visibly troubled by the prospect of saying that state courts could go off on their own on making new constitutional rules of criminal law retroactive in their own jurisdictions appeared to regard this as nothing less than an assault on the antique dogma of Marbury v. Madison, that it is the power and duty of the Supreme Court to say what the Constitution means. “You’re now creating a regime,” Justice Anthony M. Kennedy total state public defender Benjamin J. Butler of Minneapolis, “in which state courts are reaching questions that we said ought not to be reached.” (Kennedy’s skepticism, by the way, may turn out to be the decisive sentiment: there were indications that the Court may well divide closely on the outcome, with Kennedy perhaps holding the conclusive “swing” vote.)
For those Justices who were most attracted to the idea of letting state courts give criminal defendants the benefit of new constitutional rules that would help their challenges, it appeared that what was at stake was whether the Supreme Court is turned loose to “make” new law whenever it chooses. Justice John Paul Stevens told state prosecutor Patrick C. Diamond of Minneapolis that his argument in effect embraced “the notion that we can make up a new rule of law at will,” which “strikes me as a very dramatic departure from what I understand the rule of law to require.”
In terms of precedent, the argument focused mainly upon what the Court meant in its 1989 decision in Teague v. Lane, laying down a set of guidelines on when a “new” rule of constitutional procedure could or could not be applied retroactively by federal habeas courts to prior state convictions. Basically, the restrictions on retroactivity that the Court mandated are so strict that the Justices have never since found a “new” rule that they applied to earlier cases. The Court on Wednesday debated whether Teague was a decision about “rights” or only about “remedies,” whether it was both because a remedy is part of the “substance” of the right, whether it was a constitutionally grounded ruling or merely an interpretation of federal habeas statutes, whether it involved no more than a gesture of respect and “comity” toward state courts or was a directive that the states had no choice but to follow. At the end of the one-hour hearing, there was no visible consensus on what Teague now means, or on the legal authority that the Court had to make the ruling.
Although there were sustained moments when it appeared that the Justices were only talking among themselves, often correcting or contradicting each other, the two lawyers at the lectern did have some highlight moments of their own. Public defender Butler’s most effective thrust, it appeared, was the argument that the Court has not really laid down a hard-and-fast, clear line between retroactive and nonretroactive rules of criminal law, because the dividing lines it has defined always mean that some retroactivity exists but it will be fortuitous, state-by-state, so a goal of uniformity is illusory. The point really stimulated the interest of Justices like Breyer, Stevens and David H. Souter. Prosecutor Diamond’s best moment was arguing that “the constitutional design itself” mandates that, when the Supreme Court speaks, states are not free, as a matter of federal constitutional authority, to go further. The mere phrase “constitutional design” is fondly embraced by Justices like Kennedy and Roberts.
The Court, of course, will have the last word, in a decision that will not come until late winter, at the earliest.
The prosecutor’s position in this case is mind-boggling. Where does the federal constitution ever prohibit states from giving any protection they want to their prisoners? The fourteenth amendment does ban denial of liberty without due process, and under the supremacy clause a state may not engage in a practice that that SCOTUS views as denial of due process even where the state disagrees. But how on earth can a plausible case be made that a state is barred from choosing to engage in a practice in the name of giving further respect to the federal constitution, just because SCOTUS says it doesn’t have to?
Is a state court banned from allowing new hearings to prisoner’s at the president’s request, assuming SCOTUS decides Medellin against the president? Can a state court not conclude that it would be in its best interest to err on a side of recognizing a constitutional right when say 3 SCOTUS justices have recognized it? To turn a SCOTUS mandated minimum into a mandated maximum (absent a claim that the State Constitution goes further) seems to encroach on a state’s right to manage its criminal justice system as it sees fit. I’m surprised that there are any justices at all that see it otherwise.
Comment by Jacob Berlove — October 31, 2007 @ 1:21 pm
I look forward to reading the transcript, but I’m with Jacob, this issue (if you can call it that) has always struck me as a shockingly easy one. Let’s assume the law and order Justices are right and that every new right is some sort of novel judicial creation and that convictions obtained before the relevant judicial decision, therefore, are simply not constitutionally defective. So what? What in the federal constitution prohibits states from saying that our sense of equity (or fairness or justice or squeamishness) compels us to set free people convicted before that date?
Comment by Andrew Siegel — October 31, 2007 @ 5:19 pm
Jacob,
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.
Comment by David Stras — October 31, 2007 @ 6:10 pm
Of course states are free to fashion any remedies they want as a matter of state law. As I understand the issue here, though, it is whether states can interpret the retroactivity of federal constitutional rights in state court differently from what the Supreme Court has held. I think that is a much harder question.
Comment by George Thomas — November 1, 2007 @ 9:17 am
George,
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.
Comment by Chris Brown — November 1, 2007 @ 10:56 am
George,
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).
Comment by David Stras — November 1, 2007 @ 11:24 am
Wow. Like David, I helped out the petitioner with a moot. I thought that this would be a fairly easy case. My reading of Teague was, I thought, straightforward: that the rule of Teague was a rule governing habeas, not a rule about substantive rights.
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.
Comment by Ted Sampsell-Jones — November 1, 2007 @ 3:51 pm
Chris,
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?
Comment by David Stras — November 1, 2007 @ 7:14 pm
David,
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.
Comment by Donald Burke — November 1, 2007 @ 9:16 pm
I think if you look at Teague in its historical context, you have to believe that it addressed retroactivity and not the scope of the right. There are plenty of illustrations of cases where federal rights were recognized by the Supreme Court and then a term or two later they had to decide the retroactivity question. Teagie was am effort both to provide a framework in which to decide that issue and to cut back on the availability of retroactive relief for reasons of comity and federalism. Whether a case can mean something other than what its majority understood it to hold is a question of originalism v. the law of unintended consequences.
Comment by Roger Friedman — November 2, 2007 @ 9:33 am