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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.