After all that...

... Danforth loses.

Click the "Danforth" tag to see how excited I was about Danforth.

The Supreme Court has decided an important case about the meaning of constitutional rights and federalism.

Danforth v. Minnesota is about whether state courts, when they apply "new" rules of federal constitutional law, must also follow the federal law about the retroactive effect of those rights. This is an application of the Teague doctrine: When a state court conviction has become final, federal courts may review it in a habeas case, but for the most part, it will suffice if the state court applied the federal constitutional law that the U.S. Supreme Court had articulated at the time. That means that if there are Supreme Court cases that came out after the conviction became final, unless an exception applies, there will be no habeas relief in federal court. But what if the post-conviction litigation takes place in state court? Why can't the state follow its own law about whether there should be a new trial that meets the standards set in the new Supreme Court case?

In my old posts — here and here — I said I thought that originalism and federalism justified allowing the state court to function independently.

In today's opinion the majority recognizes the state courts' power to use state law to give more retroactive effect to federal constitutional rights. Justice Stevens writes the opinion:

It is... abundantly clear that the Teague rule of nonretroactivity was fashioned to achieve the goals of federal habeas while minimizing federal intrusion into state criminal proceedings. It was intended to limit the authority of federal courts to overturn state convictions—not to limit a state court’s authority to grant relief for violations of new rules of constitutional law when reviewing its own State’s convictions....

[T]he States that give broader retroactive effect to this Court’s new rules of criminal procedure do not do so by misconstruing the federal Teague standard. Rather, they have developed state law to govern retroactivity in state postconviction proceedings....

A decision by this Court that a new rule does not apply retroactively under Teague does not imply that there was no right and thus no violation of that right at the time of trial—only that no remedy will be provided in federal habeas courts. It is fully consistent with a government of laws to recognize that the finality of a judgment may bar relief. It would be quite wrong to assume, however, that the question whether constitutional violations occurred in trials conducted before a certain date depends on how much time was required to complete the appellate process.

This all seems so crashingly correct to me — and let me say that I've been teaching Federal Courts for more than 20 years — that I'm puzzled to see that Chief Justice Roberts has dissented. But I can't write more about this now. I will have to update this a little later.

Danforth v. Minnesota — a correction.

I've made a correction to this old post about Danforth v. Minnesota, the case about the retroactivity of federal constitutional law doctrine in state courts. In the post, I quote a passage that is from the state's brief, and I misidentified it as coming from the state court. The court sided with the state, and, for reasons I explain in that post and this later one about the oral argument in the U.S. Supreme Court, I think the state court got it wrong. But the court did not write the passage I found so interesting (though "a jumble" and "poorly written").

Today at Stanford Law School: "How Blogs Impact Legal Discourse."

I'll be on this panel at Stanford today, along with Larry Solum, Eric Goldman, David Friedman, and Joe Gratz. Jonathan Zittrain will be moderating.

If you attend and you're a regular reader here, please try to find a chance to introduce yourself to me and say "hi." It's especially nice when a regular commenter comes forward and a face can be attached to a name, but there's no need to apologize if you read but don't comment.

See you there!

I think I'm also going to be able to make it to "Bay Area Blawgers 2.0," in SF this evening. For more on that go to the Goldman link above. Say hi to me there too. I hope to make some contribution before rushing off to SFO for my overnight flight home.

Should I go looking for law subjects this morning to put at the top of the blog for show? Absolutely not. I blog according to the Althouse Method, established January 14, 2004. I can't imagine the circumstance that would knock me off that track. You get what comes by the Method and nothing can change that.

I saw that some fool blogger thought I blogged about Danforth v. Minnesota last week in anticipation of this panel discussion. I've been a fedcourts lawprof since the 80s, and Danforth is the most interesting fedcourts case since the 80s. The things they say about me. Anyway, if you want to see some hardcore law blogging go look at the Danforth post, and you can click on the tags at the end to see some other law things.

IN THE COMMENTS: Is it okay to use "impact" as a verb in California?

When the Supreme Court announces a "new rule" of constitutional law, does that mean the right it articulates did not exist in the past?

Yesterday, we were talking about Danforth v. Minnesota, and now the transcript of the oral argument is available (PDF). Let's dig in.

This is a case about whether the state courts must follow the doctrine that has in the past applied to federal courts that are considering whether to grant habeas corpus relief to persons who are in custody after conviction in state court. The problem is that the conviction followed a state court proceeding that complied with the federal constitutional law that the Supreme Court had articulated at the time. The Supreme Court said, in Teague v. Lane, that the federal court, on habeas, should not require the state court to redo its work according to a higher standard that was only announced later. The question in Danforth is whether the state courts can follow their own procedure and require new trials that satisfy the higher standard. Danforth was convicted of sexually abusing a child whose testimony was presented on videotape, but the Supreme Court, after his conviction became final, determined that the 6th Amendment requires live testimony. Federal courts, following Teague, won't order the new trial on habeas, but why shouldn't the state courts have the autonomy to establish their own law about whether there will be a retrial in this situation?

There are two significant matters here that ought to appeal to a conservative Justice.

First, originalism. If you are an originalist, there should be no coherent idea that rights are "new." Rights are what they are. The Court may have newly discovered those rights and failed to notice them in the past. But a case announcing a "new rule of constitutional law" should not mean that the right came into being at that point. If you think that, you believe the Constitution grows and evolves. That is the very idea that Justice Scalia mocks whenever he gives a speech, but here's the attitude he took at oral argument:

Now, you can argue, and there are many originalists who would agree with you, that there shouldn't be such a thing as a new rule, but once you've -- once you've agreed that there can be new rules, if this Court says this is a new rule, we acknowledge it wasn't the rule before, but it's new, it will not have retroactive effect, it seems to me that the State would be contradicting that ruling by saying oh, in our view the law used to be exactly what you say it newly is.

Once you've -- once you've agreed ... Why is he agreeing?! Every fiber of his being should be screaming no. A "new rule" isn't a new right. It's a newly discovered right. Is he playing dumb? Why? This should fuel the critics who say he's just hostile to the rights of the criminally accused.

Justice Stevens calls him on it:

JUSTICE STEVENS: But your basic position is that we should not be making new law. We should be -- we might have misinterpreted the law over the years, but, basically, this Court has no power to change the text of the Constitution or its meaning. I guess Justice Scalia's position is we have all that power in the world.

(Laughter.)

JUSTICE SCALIA: My position is we have asserted all that power in the world.

(Laughter.)

Isn't it nice that everyone had a laugh? I can see laughing if you enjoy seeing Scalia openly displaying hypocrisy and don't care that a man is in prison who might have gone free if he'd had the chance to cross-examine the witness against him. I don't think it's funny at all.

Second, federalism. A conservative justice should care about the autonomous operation of the state court system, subject to the demands of federal law. Teague expressed the deference federal judges owe to the state courts who performed their obligation to enforce federal law well enough and therefore deserve not to have to redo their work according to constitutional law standards they didn't know existed.

Perhaps Teague should be extended to prevent the state courts from offering a broader remedy for the violation of a newly discovered right, but why would that be? Why can't the state courts devise their own remedial approach? A conservative justice should see the need to articulate a reason for turning what was deference to state courts into a limitation on state courts. Yet Chief Justice Roberts seemed eager to conflate remedies and rights. He asserted that the nonretroactivity of a right is part of the definition of the right, and then said that retroactivity "at least" a matter of federal common law, "and doesn't Federal common law preempt State common law?"

Now, that is a question, not an assertion, so perhaps he realizes — I certainly hope he realizes — that there would still be a question of the scope of that federal common law.

Teague applied to federal courts on habeas deciding whether to upset a conviction that had become final. If you want to extend the principle to state courts and deny them the power to fashion their own approach to providing remedies for newly discovered federal constitutional rights, you need to do some common law reasoning and explain why — including why it's good federalism.

UPDATE: Orin Kerr comments on this post:

In response to Ann's second post, I think I disagree with her about the originalist point. There is no inconsistency between being an originalist as a normative matter but a legal realist when asked to explain how the Court actually works. It seems to me that an originalist could look at Crawford and say that the right should have been recognized but wasn't, and that for various reasons habeas relief should be premised on compliance with the law as it was recognized at the time rather than the law as it should have been understood to be.

I don't think you need to disagree with me. You can say that the right was always there. It existed at the time of the trial, unbeknowst to the state court, and a federal court should not not enforce it by upsetting a decision that became final before the right was discovered and proclaimed. You don't have to abandon originalism to accept Teague.

That seems to be Scalia's position. I also think the criticism falls a bit flat with Justice Scalia in particular, as he is a partial, once-in-a-while originalist rather than a consistent defender of the method.

I don't think he wants to sign on to the notion of a living constitution.

On the other hand, I agree with Ann about the federalism point.

Thanks!

Can state courts choose to apply new rules of federal constitutional law retroactively?

The Supreme Court hears oral argument today in Danforth v. Minnesota, which is a fascinating federalism case. Under Teague v. Lane, federal courts cannot grant state prisoners a writ of habeas corpus when the attack on the work of the state court is based on a rule of constitutional law that was announced after the conviction became final. (There are 2 exceptions to that doctrine that don't matter here.) The question in Danforth is whether state courts can grant prisoners relief based on the new rules that the federal court can't apply.

The Minnesota Supreme Court said no, in reasoning that I think is wrong. From the opinion (which I don't have a link for). [CORRECTION: This passage is not from the opinion but from the brief for the state of Minnesota (PDF). Here's the state court's opinion (PDF).]

If the Griffith-Teague retroactivity doctrine did not apply in state courts, supremacy and uniformity problems would be magnified because federal review of state post-conviction proceedings – in both habeas proceedings and direct review by this Court – would be unavailable for decisions that do not follow Teague. The lack of federal review deprives the state decision of constitutional legitimacy. Even if not Teague barred, this Court’s review would ratify state created federal constitutional disparity into its decisions by reviewing the claims of similarly situated collateral review defendants according to different constitutional standards.

The Griffith-Teague doctrine also vindicates federal constitutional values of finality and federalism. Finality interests identified in Teague are not unique to federal habeas review. They are present and protected by Teague in the context of federal collateral review of federal convictions as well as in review by this Court of federal issues arising in state collateral proceedings. Teague also serves the comity interest of validating the reasonable interpretation of existing federal constitutional rules made by state courts – an interest not limited to the federal habeas context. Whether a federal or state judge asserts a new federal constitutional rule to invalidate a reasonable state court interpretation of a federal constitutional rule the state finality interest is subverted.

Against strong supremacy, judicial integrity, finality, and federalism values, Petitioner asserts a state interest in selectively creating enhanced or preferred federal constitutional rights that apply only to citizens of that state. This is not a legitimate state interest. If a state wishes to create preferred rights for its citizens, respect for the political rights of the citizens of the state require a state do so under its own state law subject to the state legal and political constraints attendant to state law decisions. Anything less simply cloaks state law decisions under an illegitimately claimed federal authority for the purpose of avoiding accountability to state citizens.

These may be reasons why a state court might want to adopt nonretroactivity as a matter of state law, but that doesn't explain why federal law requires state courts to avoid applying the current rules of federal constitutional law.

What the federal courts can do is governed by the federal habeas statutes, which the U.S. Supreme Court interpreted in Teague. Everything the Court said about comity and finality in Teague related to the way federal court should treat state courts (which conducted the original trial before the new rule was announced). Why should this limit on federal habeas jurisdiction carry over to the state courts if the state, under its own law, chooses to revisit cases that have become final but were decided under the old rule of constitutional law?

Danforth was tried for sexual abuse of a child whose testimony was presented on videotape, something the Supreme Court, in Crawford v. Washington, said violates the Sixth Amendment right to confront the witnesses against you. But since Crawford was decided after Danforth's conviction became final, he can't ask a federal court, on habeas, to give him a new trial in which he has the opportunity to confront the witness. Should the state therefore be prevented from offering him that relief? I think not.

The Minnesota Supreme Court's opinion The brief for the state is a bit of a jumble of ideas, and it is poorly written. (How do you ratify disparity into something?) But there is some sense to the concern that a state court will "cloak[] state law decisions under an illegitimately claimed federal authority for the purpose of avoiding accountability to state citizens."

The idea is that state judges who have a broader conception of rights than the citizens of the state will decide cases the way they like and make it seem that federal law requires it. But federal law does require live testimony in the situation that Danforth encountered. It is simply the case that under federal jurisdiction law, the federal courts won't force the state courts to redo the trial. If the state courts were to apply the federal right anyway, they would be applying a real federal right and following state law jurisdiction rules. If the citizens of the state don't like that, they can change that jurisdiction law.

There are some more complicated angles to this, and I will write more after the oral argument becomes available.

ADDED: Scotusblog reports on the oral argument:

The Court... 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.

I'll have more when I've read the transcript of the argument. This case concerns something I've been writing about since the mid-80s, and, though the Minnesota Supreme Court says things very similar to what I've been teaching in my Federal Courts class for more than 20 years, I disagree adamantly with its conclusion. I realize many of my readers may think this is obscure and overcomplicated, but to me, it is perhaps the most interesting case I've seen in 20 years.

Justice Thomas drives south, "drinking beer and watching other cars slide off the road and crash into one another."

In the Fall of 1980, Clarence Thomas is working for the Republican Senator Danforth, and he's just registered as a Republican for the first time and voted for Ronald Reagan. On the invitation of Thomas Sowell, he attends a conference on economic policy. There, he meets the journalist Juan Williams, and he speaks freely to him -- in a way that he now portrays as naive. Williams writes a column about him -- and Thomas is not too upset about it to decline to pose for the photograph that accompanies it. But now he's publicly exposed as a black conservative -- who criticized his sister for her dependency on welfare -- and he's feeling the emotional toll:

Not long after the column appeared, Kathy [his wife] and Jamal [his son] went to Worcester to spend Christmas with the Ambush family [his in-laws]. I stayed behind in Washington. Christmas no longer meant anything to me, and I preferred putting in extra time at the office to celebrating a holiday about which I no longer cared.

Even as a time to spend with family? There's more to this than dissatisfaction with religion, but he has never even described his loss of Christian faith (though he has described many instances of race discrimination by individuals who purport to be Christians).

I started drinking as soon as they left. I woke up sick and depressed early the next morning. All I could think about was the angry reaction to the Post column.

He didn't think of his wife and child going off without him for Christmas? He didn't think about whether he wanted them gone so he could drown himself in drink? This memoir gives us the material to see how much of his problems were personal psychological problems. His grandfather abused him and deprived him of love. He seethed with anger and couldn't feel the love he wanted to feel for his family. He had a serious drinking problem. But the conscious narrative is that he was the victim of race discrimination, especially coming from liberals who wanted to herd black people and deny them their individuality.

It made no sense to me. Why was it wrong for me to speak my mind? All at once I felt an overwhelming desire to drive down to Savannah and see my family. I didn't understand why -- Daddy [his grandfather] and I were as distant as ever -- but somehow I knew I needed to be with them. I threw my clothes into a suitcase, grabbed a six-pack from the refrigerator, and headed out the door. Freezing rain had fallen during the night and the windshield of the car was thickly covered with ice, but that didn't stop me. I chipped it off and headed south, drinking beer and watching other cars slide off the road and crash into one another.

ADDED: In the next paragraph -- I'm blogging as I read -- he decides he has to leave his wife "in order to survive." He confesses to "the emotional emptiness at the center of my marriage," but he has abstained from writing one unkind word about Kathy. That's understandable, but it makes the story a little false, and I'm left wondering about how honestly he's portraying his emotional trajectory. He hasn't said anything about sex. And he began studying for the priesthood and believed at one time he had a calling into that life that demands celibacy. There are sexual themes that are utterly unexplored, and yet they will become central when Anita Hill appears on the scene.