Oral Argument in Danforth v. Minnesota:
Yesterday the Supreme Court held argument in a fascinating habeas case, Danforth v. Minnesota. It's a pretty rich and important case, so I wanted to offer some thoughts about it.

  The issue in Danforth is whether state courts are bound by the limitations the Supreme Court imposed on federal habeas jurisdiction in a 1989 case, Teague v. Lane. In Teague, the Court held that when the Supreme Court changes the law in a pro-defendant direction, criminal defendants sitting in jail can't come into federal court to take advantage of the new pro-defendant rule. The basic idea is that federal habeas corpus relief is only about being unfairly imprisoned based on the rules that existed at the time you were charged and convicted; you don't get more bites at the apple if the Supreme Court decides to change the law and make an old procedure that used to be okay now unlawful. (Teague is actually much more complicated than that, but that's the basic idea.)

  The question in Danforth is what to do about habeas claims brought in state courts. Let's say the U.S. Supreme Court creates some new rules that help criminal defendants, and a prisoner wants to come into state court and try to get the benefit of the new rules. Does the Teague limitation apply? Or can can individual state courts craft broader rules of jurisdiction that give defendants another bite at the apple in state court even if Teague bars that in federal court?

  The question is tricky because it hinges on difficult question of what Teague meant or should be construed to mean, which in turn hinge on all sorts of contested questions about retroactivity and even the nature of judicial decisionmaking. The Teague opinion is an oddity; Justice O'Connor played legislator to address an issue the parties in Teague hadn't even addressed, and now we have to figure out just where those limitations came from and what they mean. Are the Teague limitations part of federal common law? Some sort of construction of the federal habeas statute? If so, then they shouldn't be binding on the states. That's Danforth's argument: He argues that teague was for federal courts only, and that it has nothing to do with state court jurisdiction.

  Alternatively, was Teague some sort of constitutional background rule intended to be a general constitutional principle that attached to new criminal procedure decisions? In particular, does Teague stand for the notion that if a defendant is convicted and his sentence finalized based on the law as it stood, does that mean that the Constitution wasn't actually violated even if the Court later changed the law to something else? If so, then the Teague rule should be binding on the states.

  The question is particularly difficult because it's not clear how Teague relates to the broader question of retroactivity of Supreme Court decisions. My own sense, after having re-read Teague and the briefs in the case, is that the defendant Danforth characterizes Teague accurately. Justice O'Connor's opinion in Teague was all about good policy and hardly at all about the Constitution. Given that, I think of Teague as being the rule for federal court but not the states. But that prompts the broader question: beyond the confusing opinion in Teague, is retroactivity a question of federal constitutional law or just federal common law? That's trickier. My instinct is that the states should be able to do what they want, but it seems an unsettled question.

  Based on the oral argument transcript, it looks like there are probably five votes for the view that the Teague rule reflects general federal constitutional principles. The one to watch here is probably my former boss Justice Kennedy, and his view seemed unusually clear: He sees retroactivity as a matter of federal constitutional law, and he suggested that if states want to give defendants broader rights they can read their own state constitutions more broadly. He asked four or five questions expressing concern with the finality of judgments, suggesting that he saw Danforth's position as undercutting the power of the Supreme Court to define the meaning and scope of the Court's own decisions. (see, e.g., page 21, question to Danforth's counsel: "You want us to write an opinion which begins with the sentence, 'This Court has no interest in the extent to which its constitutional decisions upset final judgments'?" ; see also p.31, p43). While you can never tell where a Justice may end up based on his argument questions, I think Kennedy's questions in this case are unusually revealing.

  If that view prevails, I wonder how states and state courts will respond. In particular, states would have an easy work-around if they wanted to take it. A state Supreme Court could simply say something like this: "We interpret our state Bill of Rights to mean exactly what the U.S. Supreme Court says the federal Bill of Rights means. However, we interpret our state constitutional law of retroactivity to be broader than the federal constitutional law of retroactivity recognized in Danforth v. Minnesota." I don't know how likely state courts are to do this; I don't know anything about retroactivity of the different state constitutions. But such a decision by a state court would replace the "federal" label attached to the right with a "state" label without changing the right one bit. It would make the Danforth case a matter of form more than substance.

  For more on the case, see Lyle Denniston's summary of the argument at ScotusBlog (and the interesting comments following it).
I completely agree, particularly about state courts' ability to work around Teague by relying on the state constitution. My fear is that a decision saying that Teague is binding on state courts would discourage them from doing so. Hopefully, the Supreme Court will spell it out for them.
11.1.2007 3:40pm
Aside from the issues in this case, someone could write a law review article about this oral argument. There's some fascinating stuff with Scalia arguing that the Supreme Court makes law by making new rules (legislating from the bench!) while Stevens and others was careful to frame these jurisprudential changes as always driving at the proper interpretation.

This obviously has retroactivity implications, but, it certainly must remind anyone who has been to law school of the old Story/Holmes competing views about whether the law is a "brooding omnipresence" in the sky.

I also thought there was a fascinating digression about the exclusionary rule in the oral argument. Kennedy brought up Hudson v. Michigan (Hudson v. Walker), and you had Roberts arguing that rights/remedies are functionally the same. It's interesting that he signed on to the exclusionary rule case then, since the case purported to find a knock-and-announce violation but denying the exclusionary remedy. (Scalia and maybe Orin would both argue that the 1983 claims etc still give that right life, but I have my doubts.)

Another telling case is the Sanchez-Llamas case, where Roberts found no suppression remedy and no hiatus for the procedural default rules based in the Vienna Convention, while "assuming" that the VC gives no substantive right. Roberts, in this oral argument, came back time and again to the non-distinction between right and remedy.

Anyway, fascinating stuff in this argument. The judges, to some extent, seemed to be carrying on their own debates about the law and feeling each other out.
11.1.2007 3:42pm
Marc :
Typo alert:

Based on the oral argument transcript, it looks like there are probably five notes for the view tha . . . . .

cheers and thanks
11.1.2007 3:44pm
I fail to see why this case is important or why the Supreme Court granted cert. Ultimately, a state supreme court may do what it wants with respect to retroactivity. This case will only clarify if the state supreme court may say it is doing what it wants to do based on federal law or if it must invoke its state constitution. The only defendants it will affect, then, is those with attorneys who only make a federal argument, as was the case with the defendant in this case. But typically, a state criminal defendant will cite to both the federal and state constitution, but simply focus in on the federal constitution. In other words, this case is all about how an argument should be framed in state courts. Is that really worth the Supreme Court's time?

As an aside, Scalia makes several foolish comments during oral argument. I think the most silly is when Scalia is tying to play gotcha ya with defense counsel and asks if he rules in his favor, would that also require state supreme courts to apply new constitutional rules on direct review. (Uh, that's already the law.) To Scalia's credit, it appears that he quickly recognized how dumb his comment was and stopped talking.

The question about whether the supreme court is making new rules or is simply saying what the law has already been is just a debate between natural law and legal positivism. The court sided with the legal postivists long ago. See, e.g., Erie. I don't think the natural law view has many supporters.
11.1.2007 4:11pm
The question about whether the supreme court is making new rules or is simply saying what the law has already been is just a debate between natural law and legal positivism.

I disagree. Even within a positivist framework, it is coherent for judges to believe that they have no power to make new rules, and that any new interpretations of the law are corrections of past errors -- which implies that the new interpretation has always been the correct interpretation of the law. In fact, this is basically what originalists believe -- and originalists are nothing if not positivists.
11.1.2007 4:37pm
Simon Dodd (mail) (www):
So far as I understand the facts, Danforth went into a Minnesota court looking for a Minnesota state-law collateral remedy. Surely the factors that Minnesota courts can consider is a purely state-law question; if they want to let people out based on what the Supreme Court says the federal Constitution requires at any given time, that seems entirely a matter for them, and I don't read Teague to say anything to the contrary.
11.1.2007 4:38pm
Dan J. (mail):
I think the most fascinating aspect of the transcript is what MJG refers to: the dispute over whether a constitutional right and it's remedy are so interrelated as to make the remedy an instrinsic part of right, and thereby constitutionalizing the remedy. I have always understood that when the remedy for a violation of a constitutional right was it in question, the question of course will be resolved in part with reference to the constitutional undergirding of the right. However, its quite a leap in my mind to argue for their functional equivalence.

Professor Kerr, I would love to hear your take on this aspect of the case. Particularly, isn't Justice Roberts' position that its an antiquated distinction call into question most of the Court's jurisprudence regarding rights of action, constitutional rights, and remedies? Justice Roberts makes passing reference to other areas of the law having discarded the distinction, but from what I remember from the transcript he doesn't make reference to any specific examples, and I have never in my (short) career as a lawyer (pending admission) heard of any. The only case I can think of that would support this would be Dickerson and its holding that Miranda as a constitutional rule and not a propylactic remedy, but that seems to me weak support given the cases reliance on public acceptance of Miranda since the judgment the Court's failure to ever dispute Miranda as a constitutional rule. These distinctions have a strong doctrinal pedigree go back to Marbury v. Madison itself and the way Justice Marshall structured his opinion. Are five justices on the court ready and willing to claim that all the Court's pronouncements on the remedies for constitutional violations constitutionalized the remedies for those violations? Thats seems the harbinger of changes in basic approaches to constitutional jurisprudence if so.
11.1.2007 4:43pm
Habeas Clerk:
I've always thought that Teague was about comity, federalism, and reducing friction between the state and federal courts. In other words, a state prisoner may be able to show a constitutional violation, but the federal courts cannot grant habeas relief when the state court made a reasonable interpretation of law at the relevant time.

This is similar to the doctrine of procedural default; because the state prisoner didn't object properly in state court, say, he now has no remedy in federal court, even if a constituitonal error actually exists. These appear to be policy determinations made by the Supreme Court to govern habeas proceedings in federal court as means of strengthening federalism, knowing that some meritorious constitutional issues will go uncorrected.

Regardless, if Teague is found to be binding on the states, I seriously doubt that the states will line up to provide a more forgiving retroactivity analysis under their own constitutions.
11.1.2007 4:56pm
Dan J,

I tend to see Teague as not really raising a right/remedy question: I see it as just a question of jurisdiction. Courts and legislatures fiddle with jurisdiction all the time, but it's normally not seen as a grand jurisprudential move premised on the right/remedy distinction. Of course, it's possible to view Teague as being about the constitutional law of retroactivity rather than about federal habeas jurisdiction; I gather that's the move that Roberts has in mind.

As for rights vs. remedies, the Justices speak about that concept in so many different ways it's hard to much sense of what they're saying.
11.1.2007 5:13pm
Dan J,

I tend to see Teague as not really raising a right/remedy question: I see it as just a question of jurisdiction. Courts and legislatures fiddle with jurisdiction all the time, but it's normally not seen as a grand jurisprudential move premised on the right/remedy distinction. Of course, it's possible to view Teague as being about the constitutional law of retroactivity rather than about federal habeas jurisdiction; I gather that's the move that Roberts has in mind.

As for rights vs. remedies, the Justices speak about that concept in so many different ways it's hard to much sense of what they're saying.
11.1.2007 5:13pm
Dilan Esper (mail) (www):
Professor Kerr:

One problem with the state constitution approach is that here in California, and perhaps in other states, initiatives have been passed that make it difficult to interpret the state constitutional provisions on criminal procedure to grant broader rights than the US constitution. So if the courts can't grant retroactivity to federal court decisions, they may be forestalled from applying the new rules to habeas cases.
11.1.2007 5:36pm
d b:

To hold a governmental Act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it; and when, as in this case, the constitutionality of a state statute is placed in issue, the question is not whether some decision of ours "applies" in the way that a law applies; the question is whether the Constitution, as interpreted in that decision, invalidates the statute. Since the Constitution does not change from year to year; since it does not conform to our decisions, but our decisions are supposed to conform to it; the notion that our interpretation of the Constitution in a particular decision could take prospective form does not make sense.

Am. Trucking Ass'ns, Inc. v. Smith, 496 U.S. 167, 201 (1990) (Scalia, J., concurring in the judgment).

I don't see how Scalia can write that, and then approach oral argument that way that he did yesterday. If he doesn't think that what was constitutionally permissible one day is a constitutional violation the next merely because of a Supreme Court decision, why does he seem so intent on writing that very idea into the Constitution in this case?
11.1.2007 5:39pm
CrazyTrain (mail):
I fail to see why this case is important or why the Supreme Court granted cert. Ultimately, a state supreme court may do what it wants with respect to retroactivity. This case will only clarify if the state supreme court may say it is doing what it wants to do based on federal law or if it must invoke its state constitution.

That's incorrect. In California, for example, we have a rule that the State Supreme Court cannot interpret the State Constitutional provisions on Criminal Procedure to grant rights greater than those granted by the Federal Constitution. So, in the Country's most populous state at least, this decision is of considerable import.
11.1.2007 6:02pm
d b,

Isn't the difference Scalia being normative (in Smith) versus Scalia being descriptive (during argument yesterday)?
11.1.2007 6:12pm

do you think this is a fair representation of the position taken by Justices Scalia, Roberts, and Kennedy yesterday:

"'New rules' don't exist until we say so. Crawford rights could not have been violated prior to 3/8/04, because they didn't exist prior to 3/8/04. Even though we wouldn't have to, we choose to make them available, as an equitable matter, to all cases pending on direct appeal as of 3/8/04. But no other branch of government (except prosecutors) and no state government has the power to make them available, as an equitable matter, to more cases."

If that's correct, is it a defensible position?

You can possibly say that Scalia was simply being descriptive... but Teague doesn't require his conclusion, does it?
11.1.2007 6:35pm
CrazyTrain, the issue isn't an issue of rights, but an issue of remedies. I'm not familiar with the rule you're talking about in California though. Link, please?
11.1.2007 6:44pm
David Stras:

I do not read the questions quite so broadly as you do. In particular, I think that most of the Justices felt more comfortable with saying Teague is a matter of federal common law rather than federal constitutional principles. There might be no differences for purposes of this case, but it would be astonishing to me if the Court said that Teague was constitutionally-based because that would mean that Congress would have no ability to change the retroactivity rules, which one can plausibly argue they already did in 28 USC 2254(d). Thus, I am not quite as pessimistic about the case as you are because even if it is federal common law, the Court has to jump through some additional hoops before it can say that Teague is binding on the states.

I was also surprised that none of the Justices explored the possibility that Teague is a gloss on the statutes on habeas corpus (2244, 2254, etc.) because that seems to me to be a plausible assertion (at least as plausible as federal common law).
11.1.2007 6:48pm

No, it seems like a pretty inaccurate desciption. Your second sentence is accurate, but the rest of the sentences have significant inaccuracies. (I should say that I don't tend to agree with Scalia et. al. here, but if you're asking me if your representation of their view is fair, I don;t believe it is.).
11.1.2007 6:51pm

I hope you're right.

So the second sentence is fair. So the Crawford right didn't exist until 3/8/04. The question then is how to explain Griffith. Justice Scalia, at argument, said that Griffith was just an "equitable matter." Even though the right didn't exist before then, we give it to folks who were tried before then, so long as their direct appeal is still pending, as a matter of fairness. (And, I think you'd have to add, to give some incentive for people to appeal.)

But if the Court sides with the state, it would mean that the state of Minnesota does not have the same "equitable" power to say that, as a matter of fairness, we'd like to extend it back further. This was Breyer's point near the end of the AG's argument.) And if the state can't do it, why could Congress?

Where am I going wrong?
11.1.2007 7:14pm
Incidentally, the critical passage I'm thinking of is at Tr. 34, where Scalia explains how to reconcile the metaphysical "new rule" idea with Griffith. See also Tr. 42. For Breyer's response, see Tr. 46.
11.1.2007 7:22pm
Dave N (mail):
A few thoughts:

1) As Crazy Train and a few others have noted, some state constitutions specifically state that they cannot be read more broadly than their federal counterpart. Thus, whether Teague is federal common law or constitutional law is extremely important in those states, since those states will not have the luxury of broadening Teague retroactivity should they decide to do so--and may even decide that out of "fairness" it should do so.

The specific example I could think of would be Defendants A and B, who were tried and convicted together for the same offense. On appeal, the two raise similar but not identical issues, and as a result A's appeal is decided before B's appeal. For the sake of argument, let's make the decisions a mere day apart--and A's conviction becomes final one day before B's. But in this 24 hour period, the Supreme Court announces a new Crawford-like rule that would give B a new trial but not A.

The hypothetical state supreme court might decide that out of fairness, A should get a new trial if B gets a new trial--but if it had a rule like California's, may not be able to apply the new rule retroactively to give A that which B is already entitled to receive.

2) The argument itself was interesting--at least to me, and I thought both attorneys did fairly well. I would also note, following the discussion in earlier threads about the quality of the briefing and argument in United States v. Williams, that neither of lawyers arguing, a Deputy Public Defender and a Deputy County Attorney, were the kind of "elite" lawyers some think should be arguing in the rarified air of the United States Supreme Court.
11.1.2007 7:30pm
d b:

I'm not sure how the normative/descriptive distinction helps Scalia here. If he's really committed to the views he expressed in Smith, it seems to me that he ought to try to find a way to square what the court's done in the criminal procedure area with that position, rather than seize on Teague's reference to "new" rules as saying that the Court has the power to change the content of the Constitution from one day to the next.

"New" needn't mean "a rule that was not part of the Constitution yesterday but is a part today," I don't think. It could mean "a rule that represents a sufficiently unpredictable departure from our prior precedent that, even though it was in the Constitution all this time, we won't apply it to upset the convictions of state prisoners held pursuant to a judgment of conviction from a court of competent jurisdiction." That is, it could just be a gloss on what it means to be "in custody in violation of the Constitution . . . of the United States," under 2241. I guess my point is, if you really believe in Scalia's position in Smith, don't you have to look for an out like that?

Anyway, I think Kansas's brief has it right. Teague only makes sense as a gloss on the federal habeas statutes. It has nothing to say about state collateral proceedings. A state is free to provide more or less generous retroactivity in its own state proceedings than Teague would provide, without violating any provision of federal law. The problem, of course, for my (and Kansas's) position is Yates v. Aiken, 484 U.S. 211 (1988), which seems to treat the question whether a rule is "new" for the purposes of state habeas as a question of federal law. If anyone has any ideas on how to get out from under that case, I'd love to hear them.
11.1.2007 9:25pm
CrazyTrain (mail):
GV -- do your own legal research -- anyone with a cursory familiarity with California criminal law or with California judicial politics of the mid 80's (a crucial time) knows this (and I ain't even a criminal practitioner). And your distinction between rights and remedies is irrelevant (regardless of whether it is accurate). If Teague is a requirement of the federal constitution then the right or remedy cannot be extended to prisoners in California by state courts except when the requirements of Teague are met. Very basic stuff.
11.1.2007 9:25pm
d b:
I know I'm piling on Justice Scalia here, but isn't this remarkably wrong?

Scalia: You wouldn't want to say that, Mr. Turner, because that would place you in the position of saying what we are telling people in these Teague cases is oh, yes, the Constitution was violated, but we don't want to hear about it. I mean that's the alternative, to acknowledge that the Constitution is violated in all of these Teague cases, some of them being capital cases, and we nonetheless say well, too bad, it's on habeas.
I'd like to think that's not what we're doing, that what we're saying is, this is a new constitutional rule, there was no constitutional violation before, and that's why we're letting it stand.

We constantly tell habeas petitioners, "well, too bad, it's on habeas." AEDPA tells federal courts to defer to state court decisions that are incorrect, but not unreasonably so. "Sorry, prisoner, your conviction was unconstitutionally obtained, but not that unconstitutionally, and this is habeas." And Stone v. Powell, tells prisoners, "We don't want to hear about whether your 4th Amendment rights have been violated. You had a full and fair opportunity to litigate the issue in the state courts, right? This is habeas."

It doesn't seem like it should be at all unexpected if Teague were saying, "sure the Constitution was violated, but we don't want to hear about it," does it?
11.1.2007 9:40pm
d b,

My interpretation of Teague is the same as yours. I think it only makes sense as a limitation on federal habeas (possibly now incorporated into 2254 by AEDPA, see Williams v. Taylor). I really thought that this would be an easy case, coming down the way the petitioner's brief and Kansas argued.

This idea that Teague has a "metaphysical" dimension, siding with positivists and rejecting Blackstone, is pretty surprising to me. It's surprising that Scalia would want to take that view. It certainly doesn't seem required by Teague.

If that were the rule underlying Teague, it seems like Teague would have just said "this is a new constitutional rule, there was no constitutional violation before, and that's why we're letting it stand." Teague said nothing of the sort. See especially section IV.B. of the opinion.
11.1.2007 10:40pm
You can start with this question: Were Mr. Crawford's Crawford rights violated?

Justice Scalia's answer seems to be: No, because his trial took place before the Crawford right existed, but we nonetheless give him the benefit as part of an "equitable exception" to the retroactivity doctrine governing new rules.

That seems fine to me, though I don't understand what basis you'd have for preventing states from creating more generous equitable exceptions for the purpose of state court procedures.

Orin's answer seems to be: Yes, because even though the contested evidence was admitted at a trial that took place before Crawford existed, the right was created before his sentence was finalized.

That seems fine to me too, though it makes the whole thing turn on the definition of "final." Isn't that definition somewhat arbitrary? Isn't using it like this somewhat circular?

Suppose Minnesota changed its law regarding direct appeal and post-conviction proceedings. Suppose it said: "Under MN law, your direct appeal is not completed until you have had two years to pursue other evidence and raise claims not based on the original trial record." (MN actually already does this to some extent, with a sort of stay-and-abey procedure for certain PCP issues that can be pursued within a direct appeal.)
11.1.2007 11:17pm
I agree the matter is ultimately more of form then substance. State courts are perfectly capable of setting their own retroactivity rules rules if they want. It's just a question of whether defense lawyers and pro se prisoners have to remember to use the magic words "state constitution" or not when they file collateral attacks. Cases that involve intense straining over legal theories with no practical consequences are much ado about nothing. They don't do the Supreme Court, or the public, much good. Leave such work to law professors, and let courts deal with the theories only when they have significant practical consequences.
11.2.2007 1:16am