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).