Ann Althouse has authored two very interesting posts on the recently argued Supreme Court case, Danforth v. Minnesota. First, she wrote, "Can state courts choose to apply new rules of federal constitutional law retroactively?", and then, after reading the argument transcript, she added "When the Supreme Court announces a "new rule" of constitutional law, does that mean the right it articulates did not exist in the past?"

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