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Althouse on Danforth v. Minnesota:
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.
Dave N (mail):
I read both of the Althouse pieces and agree with OK's analysis. Although I am a habeas practioner (on the government's side), I am also a strong believer in federalism--and Minnesota or Wisconsin or any other state should be free to give retroactive effect to a rule for its prisoners even, if like Crawford, the rule is not retroactive at the federal level.

From a policy standpoint, I can see why a state might wish to do so, at least under limited circumstances. As I suggested yesterday, suppose Defendants A and B 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, which does not allow broader consitutional interpretation under the state constitution, may not be able to apply the new rule retroactively to give A that which B is already entitled to receive.
11.2.2007 3:20pm
PersonFromPorlock:
IANAL so maybe I'm missing an obvious point, but isn't the real problem that Teague was wrongly decided? How that decision can be reconciled with Marbury's explicit "an act of the legislature which is repugnant to the Constitution is void" is beyond me; the repugnant act is not not 'voidable', it's 'void [from the start]'.
11.2.2007 3:40pm
PersonFromPorlock:

...is not not 'voidable'....

Arrgh. "Is not voidable." We fumblefingers need an 'edit' function!
11.2.2007 3:43pm
Oren (mail):
PfP, while I support your sentiment in theory, such a policy would, in practice, be almost unworkable. It would entail that every time the SCOTUS announces any rule that changes the judicial process every person convicted under the old procedure (and they need not be in jail still) would have cause for Habeas relief.

The net effect would be to restrain the Court from ever expanding the rights of defendants.
11.2.2007 3:58pm
AF:
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.

But if he thought that, he would have to conclude that states can make their own rules about when habeas relief should be granted.
11.2.2007 4:36pm
tdsj:
"It would entail that every time the SCOTUS announces any rule that changes the judicial process every person convicted under the old procedure (and they need not be in jail still) would have cause for Habeas relief."

I really doubt that. First, even if allowed to depart from Teague, most states wouldn't. Second, even if the Teague bar didn't prevent state prisoners from pursuing state habeas relief, various other procedural bars would often prevent them from doing so.

The net effect would be to restrain the Court from ever expanding the rights of defendants.


So should we overrule Griffith as well?
11.2.2007 4:53pm
AF:
Scalia said:


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.


That is in direct contrast to originalism, which would say, as Orin notes, that there was a constitutional violation before, but it was not recognized at such. Scalia's statement is even more extraordinary when you recall that the new rule at issue is Crawford -- which Scalia himself wrote and justified on originalist grounds!
11.2.2007 4:55pm
tdsj:
But AF, I think what Justice Scalia seemed to be saying throughout the opinion was something like "I don't necessarily like the idea of 'new rules,' but no one has made an argument for getting rid of it here, so for the purposes of this case, I'm stuck with it and I have to apply it."

I don't know whether that's the right way to approach this case, but I don't see any great hypocrisy in it.
11.2.2007 5:06pm
Kovarsky (mail):
Scalia's statement is even more extraordinary when you recall that the new rule at issue is Crawford -- which Scalia himself wrote and justified on originalist grounds!

Whorton v. Bockting was not a close case. I don't know what is particularly stunning about Scalia's case if you disagree with the basic premise of the argument - that there's no tension between originalism (prescriptive) and realism (descriptive).
11.2.2007 5:15pm
Kovarsky (mail):
i confess, i did it. i posted last time without reading the linked material. after reading Althouse's post and the oral argument it excerpts, it seems that Orin is obviously corrrect.

that's the whole joke of the exchange. scalia seems to say that retroactivity wouldn't be an issue if the court wasn't in the business of expanding the scope of certain constitutional protections.

i'd go on to say that he's clearly right - not about originalism - but about the fact that the more you buy into the idea that rights of criminal procedure change, the more you have to tweak how the writ responds to that evolution.

any tension between his votes in crawford and whorton is easily explained by comparing his frequently voiced hostility to federal collateral relief with his ferocious protection of criminal defendants' rights on direct review.
11.2.2007 5:27pm
Kovarsky (mail):
by the way, if anybody has a link to the topside brief in baze, which is (i think) due today, i'd love to see it.
11.2.2007 5:30pm
PersonFromPorlock:

PfP, while I support your sentiment in theory, such a policy would, in practice, be almost unworkable. It would entail that every time the SCOTUS announces any rule that changes the judicial process every person convicted under the old procedure (and they need not be in jail still) would have cause for Habeas relief.

I don't see it. Surely most USSC decisions involve refining practice without finding the underlying law "repugnant." It's only when the base law is found unconstitutional that those incarcerated under it can claim habeas; and if that makes problems, well, is "ruat coelum" just a pretty phrase?
11.2.2007 5:31pm
drewsil (mail):
It seems to me that the distinction Randy Barnett draws between interpretation and construction can be useful in discussing why an originalist would not necessarily support retroactive application. If the court decides on a new method of construction for a given rule that does not mean the previous construction was incorrect. Stated another way originalism does not imply a unique rule, rather it implies a set of constraints which the court must obey.

This distinction leaves open the question of what should be done if the old rule is believed to be inconsistent with the original meaning of the constitution.
11.2.2007 5:38pm
Kovarsky (mail):


habeas relief is considered equitable. the justices understand it that way. in light of that fact, i'm not sure you'd find that much rigorous support for the idea that the Teague bar is unconstitutional.
11.2.2007 5:43pm
AF:
Kovarsky, your second comment would be on point if we were discussing Whorton v. Bockting, but it unresponsive to Danforth, which is a state-court case. The same is true, I think, of Orin's response to Althouse. Resolving the tension between originalism and Teague by saying that Teague is about the scope of federal habeas relief means ruling for the petitioner in Danforth. As Scalia himself recognizes, the respondent can win only if Teague means that new constitutional rules, by their very nature, cannot be applied retroactively in state collateral proceedings because "there was no constitutional violation" before the new rule was enacted. This (prescriptive) view is directly contrary to originalism (even in Orin's reasonable formulation of it) and federalism.

tdsj: How can Scalia claim not to like the idea of new rules, when (a) he wrote the new rule in question (Crawford) and (b) he voted to adopt the idea of new rules (Teague)? That in itself is hypocritical.
11.2.2007 6:01pm
OrinKerr:
AF writes:
esolving the tension between originalism and Teague by saying that Teague is about the scope of federal habeas relief means ruling for the petitioner in Danforth. As Scalia himself recognizes, the respondent can win only if Teague means that new constitutional rules, by their very nature, cannot be applied retroactively in state collateral proceedings because "there was no constitutional violation" before the new rule was enacted. This (prescriptive) view is directly contrary to originalism (even in Orin's reasonable formulation of it) and federalism.
But why? Originalism is a just normative theory of interpretation. That is, it is a view as to what the Constitution should be interpreted to mean. But that doesn't in any way preclude an originalist judge from concluding that "a constitutional violation" must be interpreted with respect to what the Supreme Court had said at the time. It doesn't demand it either, but it doesn't preclude it. Having a strong view about what the Constitution should mean doesn't mean that a person has to conclude that there is a true Constitution that is always in effect even if courts don't recognize it.
11.2.2007 6:18pm
OrinKerr:
Kovarsky,

I believe that brief isn't due until the 5th.
11.2.2007 6:20pm
AF:
Orin -- But what does it mean to say that "a constitutional violation must be interpreted with respect to what the Supreme Court had said at the time"? Is it a statement about what the Constitution means? A statement about the scope of collateral remedies? Or something else?
11.2.2007 6:33pm
Kovarsky (mail):
I believe that brief isn't due until the 5th.

oh yeah, today is the second, not the fifth. d'oh.
11.2.2007 6:39pm
Habeas Clerk:
I think Althouse's posts are spot on. Why are Roberts and Scalia (and maybe Kennedy) suddenly so concerned about a state court upsetting a state criminal judgment in a state post-conviction/habeas proceeding?

Holding that Teague is binding on the states would be an anti-federalism decision.
11.2.2007 6:47pm
Kovarsky (mail):
AF --

Kovarsky, your second comment would be on point if we were discussing Whorton v. Bockting, but it unresponsive to Danforth, which is a state-court case. The same is true, I think, of Orin's response to Althouse. Resolving the tension between originalism and Teague by saying that Teague is about the scope of federal habeas relief means ruling for the petitioner in Danforth.

I only know Danforth from the QP and commentary in cyberspace; I haven't read the briefs or the OA (other than the portions excerpted in the linked post).

Based on that material alone, I don't understand why the the question of whether Scalia's position is inconsistent would turn on the sovereign authority conducting the colalteral proceeding.

To be clear, I think Scalia's wrong here - I don't think there's anything in Teague that precludes a state court from decidng to grant collateral relief. I just don't think there's anything about originalism that supplements the argument.

I get that originalism's premise is that the set of constitutional rights should be fixed at the founding. I just don't get why you can't still believe in a retroactivity rule based on the fact that courts (descriptively) don't actually decide cases by that paradigm. I'd even go a step further than Scalia and say that even if courts had always and forevor used originalist method, one could still support a retroactivity rule based purely on disagreement about what that original set of rights was.
11.2.2007 6:52pm
AF:
I understand the distinction Kovarsky and Orin are making between a retroactivity rule and a view as to what the Constitution should be interpreted to mean. But (1) I don't think this distinction is consistent with Scalia's view of originalism, and (2) I don't understand why a retroactivity rule, as distinct from what the Constitution should be interpreted to mean, ought to be made binding on state courts.

I think Orin's formulation of originalism is reasonable, but I don't think it is Justice Scalia's view of originalism. In fact, rereading the oral argument transcript, Scalia himself seems to acknowledge this, in the following exchange:


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.)


This strikes me as a frank admission by Scalia that he is not following originalism as he understands it. Of course, given that admission, Orin is correct that the criticism of him on originalist grounds falls a bit flat.

Scalia's embrace of the living Constitution does have the advantage of explaining why Teague should be binding on state courts: Teague defines the limits of federal constitutional rights. Under Orin's reformulation, on the other hand, it is hard to see why the Teague rule should apply to the states -- particularly with respect to a new rule, like Crawford, that is said to be consistent with the Constitution's original meaning. Even if an originalist is not committed to the idea that a new, originalist, interpretation of the Constitution has always been "in effect," they do have to think that is has always been correct. It is hard to see how the Constitution or any other federal law prevents state courts from giving the correct interpretation of the Constitution retroactive effect in state habeas proceedings if they so choose.
11.2.2007 9:26pm
OrinKerr:
AF writes:
But what does it mean to say that "a constitutional violation must be interpreted with respect to what the Supreme Court had said at the time"? Is it a statement about what the Constitution means? A statement about the scope of collateral remedies? Or something else?
It think it is a recognition that the Supreme Court will reverse any lower court court that tries to say the law is something else, on the ground that under the Supreme Court's precedents there was no constitutional violation. That is, the meaning of a "constitutional violation" is a violation of the Constitution as understood from the Court's precedents.
11.2.2007 10:06pm
AF:
Orin, I understand your definition of a "constitutional violation." My question, which was poorly formulated, was about the legal basis for the Supreme Court to adopt that definition in the context of collateral proceedings and therefore to hold that new rulings cannot be applied retroactively (because there was no constitutional violation). It seems to me that such a holding cannot be based on the Court's current interpretation of what the Constitution itself requires. Rather, it would have to be based either on the Court's equitable power over remedies (and therefore not binding on the states) or on the sort of "constitutionally based" judge-made law that Scalia so loves to disparage. See Dickerson v. United States.
11.2.2007 11:48pm
TDPerkins (mail):
<blockquote>
JUSTICE SCALIA: My position is we have asserted all that power in the world.
(Laughter.)
</blockquote>

I don't see that Scalia is using the royal we to refer to his own intellectual/philosophical person, but rather that as a matter of fact thatthe SC has asserted it has such powers successfully, and that in this and like cases that assertion will be suffered indefinitely, originalism being better than other theories of contsitutionalism notwithstandng.

I can easily that Scalia's not-quite-flowing diction in the earlier quote is reflective of the internal turmoil of stating what is going to be even though he he does not feel it is intellectually rigorous or even just.

However, I agree he seems both to have an antipathy towards the rights of the accused, such that all other things being equal, he will disparage them; and that his fears towards created rights are unhelpful in interpreting the 9th (or the 10th) amendments--except to interpret them into functional oblivion.

Yours, TDP, ml, msl, &pfpp
11.3.2007 11:13am