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Analysis: ‘Creating’ or ‘declaring’ rights


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.