ROBERTS, C. J., DISSENTING
DANFORTH V. MINNESOTA
552 U. S. ____ (2008)
SUPREME COURT OF THE UNITED STATES
NO. 06-8273
STEPHEN DANFORTH, PETITIONER
v.
MINNESOTA
on writ of certiorari to the supreme court of
minnesota
[February 20, 2008]
Chief Justice Roberts, with whom
Justice Kennedy joins, dissenting.
Some of our new rulings on the
meaning of the United States Constitution apply retroactively—to
cases already concluded—and some do not. This Court has held that
the question whether a particular ruling is retroactive is itself a
question of federal law. It is basic that when it comes to any such
question of federal law, it is “the province and duty” of this
Court “to say what the law is.”
Marbury v.
Madison, 1 Cranch 137, 177 (1803). State courts are the
final arbiters of their own state law; this Court is the final
arbiter of federal law. State courts are therefore bound by our
rulings on whether our cases construing federal law are
retroactive.
The majority contravenes these bedrock
propositions. The end result is startling: Of two criminal
defendants, each of whom committed the same crime, at the same
time, whose convictions became final on the same day, and each of
whom raised an identical claim at the same time under the Federal
Constitution, one may be executed while the other is set free—the
first despite being correct on his claim, and the second because of
it. That result is contrary to the Supremacy Clause and the
Framers’ decision to vest in “one supreme Court” the responsibility
and authority to ensure the uniformity of federal law. Because the
Constitution requires us to be more jealous of that responsibility
and authority, I respectfully dissent.
I
One year after
Teague v.
Lane,
489
U. S. 288 (1989)—our leading modern precedent on
retroactivity—
Teague’s author explained:
“The determination whether a
constitutional decision of this Court is retroactive … is a matter
of federal law. When questions of state law are at issue, state
courts generally have the authority to determine the retroactivity
of their own decisions. The retroactive applicability of a
constitutional decision of this Court, however, ‘is every bit as
much of a federal question as what particular federal
constitutional provisions themselves mean, what they guarantee, and
whether they have been denied.’ ”
American Trucking
Assns., Inc. v.
Smith,
496 U. S. 167, 177–178 (1990)
(plurality opinion of O’Connor, J.) (quoting
Chapman v.
California,
386 U. S. 18, 21 (1967);
citation omitted)).
For that reason, “we have consistently required
that state courts adhere to our retroactivity decisions.” 496 U.
S., at 178 (citing
Michigan v.
Payne,
412 U. S. 47 (1973), and
Arsenault v.
Massachusetts,
393 U. S. 5 (1968)
(per
curiam)). Even more recently, we held that the “Supremacy
Clause does not allow federal retroactivity doctrine to be
supplanted by the invocation of a contrary approach to
retroactivity under state law.”
Harper v.
Virginia
Dept. of Taxation,
509 U. S. 86, 100 (1993)
(citation omitted).
Indeed, about the only point on which our
retroactivity jurisprudence has been consistent is that the
retroactivity of new federal rules is a question of federal law
binding on States. The Court’s contrary holding is based on a
misreading of our precedent and a misunderstanding of the nature of
retroactivity generally.
A
As the Court correctly points
out, before 1965 we took for granted the proposition that all
federal constitutional rights, including rights that represented a
break from earlier precedent, would be given full retroactive
effect on both direct and collateral review. That all changed with
Linkletter v.
Walker,
381 U. S. 618 (1965). In
that case, a Louisiana prisoner brought a federal habeas petition
arguing that illegally seized evidence was introduced against him
at trial in violation of
Mapp v.
Ohio,
367 U. S. 643 (1961).
Mapp, however, had been decided after his conviction
became final. We granted certiorari to decide whether the
Mapp rule “operates retrospectively upon cases finally
decided in the period prior to
Mapp.” 381 U. S., at
619–620. In answering this question, we broke from our past
practice of assuming full retroactivity, holding that “we are
neither required to apply, nor prohibited from applying, a decision
retrospectively.”
Id., at 629. Our analysis turned
entirely on the nature and scope of the particular constitutional
right at issue: “[W]e must … weigh the merits and demerits [of
retroactive application] in each case by looking to the prior
history of the rule in question, its purpose and effect, and
whether retrospective operation will further or retard its
operation.”
Ibid. Under this framework, we held that
Mapp would apply only prospectively. 381 U. S., at
639–640.
The next year, we decided
Johnson v.
New Jersey,
384 U. S. 719 (1966).
Johnson was a direct appeal from the New Jersey Supreme
Court’s denial of
state collateral relief. The precise
question in
Johnson was whether the rules announced in
Escobedo v.
Illinois,
378 U. S. 478 (1964),
and
Miranda v.
Arizona,
384 U. S. 436 (1966),
would apply to state prisoners whose convictions had become final
before those cases were decided. In holding that
Escobedo
and
Miranda should apply only prospectively, 384 U. S., at
732, we imported
Linkletter’s mode of retroactivity
analysis into review of state postconviction proceedings, 384 U.
S., at 726–727. Finally, in
Stovall v.
Denno,
388 U. S. 293
(1967), we announced that, for purposes of retroactivity analysis,
“no distinction is justified between convictions now final, as in
the instant case, and convictions at various stages of trial and
direct review.”
Id., at 300.
Thus, by 1967, the
Linkletter
analysis was applied in review of criminal convictions, whether
final or not. No matter at what stage of proceedings this Court
considered a retroactivity question, the issue was decided with
reference to the purposes and practical impact of the precise
federal right in question: “Each constitutional rule of criminal
procedure has its own distinct functions, its own background of
precedent, and its own impact on the administration of justice, and
the way in which these factors combine [to decide the retroactivity
issue] must inevitably vary with the [constitutional] dictate
involved.”
Johnson,
supra, at 728.
Because the question of retroactivity was so
tied up with the nature and purpose of the underlying federal
constitutional right, it would have been surprising if any of our
cases had suggested that States were free to apply new rules of
federal constitutional law retroactively even when we would not. As
one of the more thoughtful legal scholars put it in discussing the
effect of the
Linkletter analysis on state collateral
review, “[i]f a state gave relief in such a case on the exclusive
authority of
Mapp, under the rationale of the
Linkletter opinion it would presumably have been
reversed.” Mishkin, Foreword: The High Court, The Great Writ, and
the Due Process of Time and Law, 79 Harv. L. Rev. 56, 91, n. 132
(1965).
Our precedents made clear that States could
give greater substantive protection under their own laws than was
available under federal law, and could give whatever retroactive
effect to
those laws they wished. As the Court explained
in
Johnson, “[o]f course, States are still entirely free
to effectuate under their own law stricter standards than those we
have laid down and to apply those standards in a broader range of
cases than is required by this decision.” 384 U. S., at 733. The
clear implication of this statement was that States could apply
their own retroactivity rules only to new substantive rights “under
their own law,” not to new federal rules announced by this
Court.
Thus, contrary to the Court’s view, our early
retroactivity cases nowhere suggested that the retroactivity of new
federal constitutional rules of criminal procedure was anything
other than “a matter of federal law.”
Daniel v.
Louisiana,
420 U. S. 31, 32 (1975)
(per curiam). It is no surprise, then, that when we held
that a particular right would not apply retroactively, the language
in our opinions did not indicate that our decisions were optional.
See,
e.g.,
Fuller v.
Alaska,
393 U. S. 80, 81 (1968)
(per curiam) (the rule announced in
Lee v.
Florida,
392 U. S. 378 (1968),
“
is to be applied only to trials in which the evidence is
sought to be introduced after the date of [that] decision”
(emphasis added)). And, of course, when we found that a state court
erred in holding that a particular right should not apply
retroactively, the state court was bound to comply. See,
e.g.,
Kitchens v.
Smith,
401 U. S. 847 (1971)
(per curiam);
McConnell v.
Rhay,
393 U. S. 2, 3–4
(1968)
(per curiam);
Arsenault v.
Massachusetts,
393 U. S. 5, 6 (1968)
(per
curiam).
Although nothing in our decisions
suggested that state courts could determine the retroactivity of
new federal rules according to their own lights, we had no
opportunity to confront the issue head on until
Michigan
v.
Payne,
412 U. S. 47 (1973).[
Footnote 1] In
Payne, the defendant had
argued before the Michigan Supreme Court that his resentencing
violated the rule we had announced in
North Carolina v.
Pearce,
395
U. S. 711 (1969). In considering this question, the state court
noted that this Court had “not yet decided whether
Pearce
is to be applied retroactively.”
People v.
Payne,
386 Mich. 84, 90, n. 3, 191 N. W. 2d 375, 378, n. 2
(1971). Nevertheless, without so much as citing any federal
retroactivity precedent, the court decided that it would “apply
Pearce in the present case in order to instruct our trial
courts as to the Michigan interpretation of an ambiguous portion of
Pearce … , pending clarification by the United States
Supreme Court.”
Id., at 91, n. 3, 191 N. W. 2d,
at 378, n. 2.
We granted certiorari in
Payne only
on the question of retroactivity, and decided that
Pearce
should not apply retroactively. In reversing the contrary decision
of the state court, our language was not equivocal: “Since the
resentencing hearing in this case took place approximately two
years before
Pearce was decided, we hold that the Michigan
Supreme Court erred in applying its proscriptions here.” 412 U. S.,
at 57.
The majority argues that
Payne did
not preclude States from applying retroactivity rules different
from those we announced; rather, the argument goes, the Michigan
Supreme Court simply elected to follow the federal retroactivity
rule, “pending clarification.” See
ante, at 18–20. That is
certainly a possible reading of
Payne, but not the most
plausible one. The Michigan Supreme Court did not purport to rest
its decision to apply
Pearce retroactively on the federal
Linkletter analysis, and this Court’s reversal is most
reasonably read as
requiring state courts to apply our
federal retroactivity decisions. Notably, this is not the first
time Members of this Court have debated the meaning of
Payne, with
Teague’s author explaining that
Payne supports the proposition that “we have consistently
required that state courts adhere to our retroactivity decisions,”
American Trucking, 496 U. S., at 178 (plurality opinion of
O’Connor, J.), and the author of today’s opinion disagreeing in
dissent, see
id., at 210, n. 4 (opinion of Stevens,
J.). But whichever way
Payne is read, it either offers no
support for the majority’s position, because the state court simply
applied federal retroactivity rules, or flatly rejects the
majority’s position, because the state court failed to apply
federal retroactivity rules, and was told by this Court that it
must.
Meanwhile, Justice Harlan had begun dissenting
in our retroactivity cases, pressing the view that new rules
announced by the Court should be applied in all cases not yet
final, without regard to the analysis set forth in
Linkletter. See
Desist v.
United States,
394 U. S. 244,
256–269 (1969);
Mackey v.
United States,
401 U. S. 667, 675–702
(1971) (opinion concurring in judgments in part and dissenting in
part). In
Griffith v.
Kentucky,
479 U. S. 314 (1987), we abandoned
Linkletter as it applied to cases still on direct review
and adopted Justice Harlan’s view in such cases. Noting that
nonretroactivity on direct appeal “violates basic norms of
constitutional adjudication” and that “selective application of new
rules violates the principle of treating similarly situated
defendants the same,” 479 U. S., at 322, 323, we held that “a new
rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases,
state or federal, pending on
direct review or not yet final,”
id., at 328 (emphasis
added). Just as in previous cases,
Griffith by its terms
bound state courts to apply our retroactivity decisions.
Two years after
Griffith was decided,
we granted certiorari in
Yates v.
Aiken,
484 U. S. 211 (1988). In
that case, a South Carolina state habeas court had decided that our
decision in
Francis v.
Franklin,
471 U. S. 307 (1985),
should not be applied retroactively. If the authority of state
courts to apply their own retroactivity rules were well established
under our precedents—as the majority would have it, see
ante, at 6–12—this case should have been easily decided on
the ground that whatever the federal retroactivity rule, the State
could adopt its own rule on the retroactivity of newly announced
federal constitutional standards.
Instead, the State argued to this Court “that
we should adopt Justice Harlan’s theory that a newly announced
constitutional rule should not be applied retroactively to cases
pending on collateral review unless” the rule meets certain
criteria—the flip side of Justice Harlan’s view about cases on
direct review that we had accepted in
Griffith. 484 U. S.,
at 215. Under that approach, the State argued,
Francis
would not be applied retroactively on collateral review. 484 U. S.,
at 215. In response, we discussed Justice Harlan’s “distinction
between direct review and collateral review.”
Ibid. We
found, however, that it was “not necessary to determine whether we
should … adopt Justice Harlan’s reasoning as to the retroactivity
of cases announcing new constitutional rules to cases pending on
collateral review,”
id., at 215–216, because
Francis did not announce a new rule.
This Court went on, however, to address South
Carolina’s alternative argument—that it “has the authority to
establish the scope of its own habeas corpus proceedings,” which
would allow it in the case before the Court “to refuse to apply a
new rule of federal constitutional law retroactively in such a
proceeding.” 484 U. S., at 217. This argument should sound
familiar—whatever the federal retroactivity rule, a State may
establish its own retroactivity rule for its own collateral
proceedings. This Court rejected that proposition, not only because
it did not regard
Francis as a new rule, but also because
the state court did not “plac[e] any limit on the issues that it
will entertain in collateral proceedings.” 484 U. S., at 218. As
this Court explained, if the state court “consider[s] the merits of
the federal claim, it has a duty to grant the relief that
federal law requires.”
Ibid. (emphasis
added).
Given all this, the present case should come
out the way it does only if
Teague changed the nature of
retroactivity as a creature of federal law binding on the States,
and adopted the argument rejected in
Yates—that when it
comes to retroactivity, a State “has the authority to establish the
scope of its own habeas corpus proceedings.”
Teague did no
such thing.
B
In
Teague, we completed
the project of conforming our view on the retroactivity of new
rules of criminal procedure to those of Justice Harlan. Justice
O’Connor’s plurality opinion posed the problem by noting, with more
than a bit of understatement, that the “
Linkletter
retroactivity standard has not led to consistent results.” 489 U.
S., at 302. In light of these concerns, and because of “ ‘the
important distinction between direct review and collateral
review,’ ”
id., at 307 (quoting
Yates,
supra, at 215), we generally adopted Justice Harlan’s
approach to retroactivity on collateral review, 489 U. S., at 310,
just as we had previously adopted his approach on direct review in
Griffith.
The
Linkletter approach
to retroactivity was thus overruled in favor of the Harlan approach
in two steps:
Griffith and
Teague. There is no
dispute that
Griffith is fully binding on States; a new
rule “is to be applied retroactively to all cases,
state or
federal, pending on direct review or not yet final.” 479 U.
S., at 328 (emphasis added).
Teague is simply the other
side of the coin, and it too should be binding in “all cases, state
or federal.” The fact that
Linkletter was overruled in two
stages rather than one should not lead to a different result.
Indeed,
Teague did not purport to
distinguish between federal and state collateral review. Justice
O’Connor’s opinion noted that “in
Yates v.
Aiken,
we were asked to decide whether the rule announced in
Francis v.
Franklin, should be applied to a
defendant on collateral review at the time that case was decided,”
but that we were able to decide the case on alternative grounds.
489 U. S., at 307 (citations omitted). This citation of
Yates—a state habeas case—makes clear that
Teague
contemplated no difference between retroactivity of new federal
rules in state and federal collateral proceedings. Thus, our
unqualified holding—that “[u]nless they fall within an exception to
the general rule, new constitutional rules of criminal procedure
will not be applicable to those cases which have become final
before the new rules are announced,” 489 U. S., at 310—is enough to
decide this case.
Moreover, the reasons the
Teague
Court provided for adopting Justice Harlan’s view apply to state as
well as federal collateral review. The majority is quite right that
Teague invoked the interest in comity between the state
and federal sovereigns.
Id., at 308. But contrary to the
impression conveyed by the majority, there was more to
Teague than that.
Teague also relied on the
interest in finality: “Application of constitutional rules not in
existence at the time a conviction became final seriously
undermines the principle of finality which is essential to the
operation of our criminal justice system. Without finality, the
criminal law is deprived of much of its deterrent effect.”
Id., at 309. The Court responds by flatly stating that
“finality of state convictions is a
state interest, not a
federal one.”
Ante, at 15. But while it is certainly true
that finality of state convictions is a state interest, that does
mean it is not also a federal one. After all, our decision in
Griffith made finality the touchstone for retroactivity of
new federal rules, and bound States to that judgment. See 479 U.
S., at 328 (new rules are “to be applied retroactively to all
cases,
state or federal, pending on direct review or not
yet final” (emphasis added)).
It is quite a radical proposition to assert
that this Court has nothing to say about an interest “essential to
the operation of our criminal justice system,” without which “the
criminal law is deprived of much of its deterrent effect,” when the
question is whether this interest is being undermined by the very
rules of
federal constitutional procedure that we are
charged with expounding. A State alone may “evaluate, and weigh the
importance of” finality interests,
ante, at 15, when it
decides which substantive rules of criminal procedure
state
law affords; it is quite a leap to hold, as the Court does,
that they alone can do so in the name of the Federal
Constitution.
Teague was also based on the inequity
of the
Linkletter approach to retroactivity. After noting
that the disparate treatment of similarly situated defendants led
us in
Griffith to adopt Justice Harlan’s view for cases on
direct appeal, the Court then explained that the
“
Linkletter standard also led to unfortunate disparity in
the treatment of similarly situated defendants on collateral
review.” 489 U. S., at 305. See also
id., at 316 (the
Court’s new approach to retroactivity “avoids the inequity
resulting from the uneven application of new rules to similarly
situated defendants”).
This interest in reducing the inequity of
haphazard retroactivity standards and disuniformity in the
application of federal law is quite plainly a predominantly federal
interest. Indeed, it was one of the main reasons we cited in
Griffith for imposing a uniform rule of retroactivity upon
state courts for cases on direct appeal. And, more to the
point, it is the very interest that animates the Supremacy Clause
and our role as the “one supreme Court” charged with enforcing
it.
Justice Story, writing for the Court, noted
nearly two centuries ago that the Constitution requires
“
uniformity of decisions throughout the whole United
States, upon all subjects within [its] purview.”
Martin v.
Hunter’s Lessee, 1 Wheat. 304, 347–348 (1816). Indeed, the
“fundamental principle” of our Constitution, as Justice O’Connor
once put it, is “that a single sovereign’s law should be applied
equally to all.” Our Judicial Federalism, 35 Case W. Res.
L. Rev. 1, 4 (1985). States are free to announce their own
state-law rules of criminal procedure, and to apply them
retroactively in whatever manner they like. That is fully
consistent with the principle that “a single sovereign’s law should
be applied equally to all.” But the Court’s opinion invites just
the sort of disuniformity in federal law that the Supremacy Clause
was meant to prevent. The same determination of a federal
constitutional violation at the same stage in the criminal process
can result in freedom in one State and loss of liberty or life in a
neighboring State.[
Footnote 2]
The Court’s opinion allows “a single sovereign’s law”—the Federal
Constitution, as interpreted by this Court—to be applied
differently in every one of the several States.
Finally, from
Linkletter through
Johnson to
Teague, we have always emphasized that
determining whether a new federal right is retroactive turns on the
nature of the substantive federal rule at issue. See
Linkletter, 381 U. S., at 629 (in deciding retroactivity,
we “loo[k] to the prior history of the rule in question, its
purpose and effect, and whether retrospective operation will
further or retard its operation”);
Johnson, 384 U. S., at
728 (“Each constitutional rule of criminal procedure has its own
distinct functions, its own background of precedent, and its own
impact on the administration of justice, and the way in which these
factors combine [to decide the retroactivity issue] must inevitably
vary with the dictate involved”);
Teague, supra, at
311–315 (deciding whether rule is applicable to cases on collateral
review turns on whether the rule “places ‘certain kinds of primary,
private individual conduct beyond the power of the criminal
law-making authority to proscribe,’ ” and whether the rule is
an “absolute prerequisite to fundamental fairness that is ‘implicit
in the concept of ordered liberty’ ”). That is how we
determine retroactivity—by carefully examining the underlying
federal right. See,
e.g.,
Whorton v.
Bockting, 549 U. S. ___, ___–___ (2007) (slip op., at
11–14);
Schriro v.
Summerlin,
542 U. S. 348, 353–354
(2004);
Sawyer v.
Smith,
497 U. S. 227, 243–245
(1990);
Penry v.
Lynaugh,
492 U. S. 302, 318–319
(1989).
When this Court decides that a particular
right shall not be applied retroactively, but a state court finds
that it should, it is at least in part because of a different
assessment by the state court of the nature of the underlying
federal right—something on which the Constitution gives this Court
the final say. The nature and scope of the new rules we announce
directly determines whether they will be applied retroactively on
collateral review. Today’s opinion stands for the unfounded
proposition that while we alone have the final say in expounding
the former, we have no control over the latter.
II
The Court’s holding is not only
based on a misreading of our retroactivity cases, but also on a
misunderstanding of the nature of retroactivity generally. The
majority’s decision is grounded on the erroneous view that
retroactivity is a remedial question. See
ante, at 26–27
(“It is important to keep in mind that our jurisprudence concerning
the ‘retroactivity’ of ‘new rules’ of constitutional law is
primarily concerned, not with the question whether a constitutional
violation occurred, but with the availability or nonavailability of
remedies”). But as explained in the lead opinion in
American
Trucking—penned by the author of the lead opinion in
Teague—it is an “error” to “equat[e] a decision not to
apply a rule retroactively with the judicial choice of a remedy.”
496 U. S., at 194 (plurality opinion of O’Connor, J.). As Justice
O’Connor went on to emphasize, “[n]or do this Court’s retroactivity
decisions, whether in the civil or criminal sphere, support the …
assertion that our retroactivity doctrine is a remedial principle.”
Ibid. “While application of the principles of
retroactivity may have remedial effects, they are not themselves
remedial principles… . A decision defining the operative
conduct or events that will be adjudicated under old law does not,
in itself, specify an appropriate remedy.”
Id., at 195.
See also
Lemon v.
Kurtzman,
411 U. S. 192, 199
(1973) (plurality opinion) (describing the question of
retroactivity as “whether we will apply a new constitutional rule
of criminal law in reviewing judgments of conviction obtained under
a prior standard,” and contrasting this with the question of the
“appropriate scope of federal equitable remedies”).
In other words, when we ask
whether and to what extent a rule will be retroactively applied, we
are asking what law—new or old—will apply. As we have expressly
noted, “[t]he
Teague doctrine … does not involve a special
‘remedial’ limitation on the principle of ‘retroactivity’ as much
as it reflects a limitation inherent in the principle itself.”
Reynoldsville Casket Co. v.
Hyde,
514 U. S. 749, 758
(1995).
The foregoing prompts a lengthy rejoinder from
the Court, to the effect that it is wrong to view retroactivity as
a federal choice-of-law question rather than a remedial one. That
view, we are told, was rejected by five Justices in
American
Trucking and then by the Court in
Harper.
Ante, at 20–24. But the proposition on which five Members
of the Court agreed in
American Trucking, and that the
Court adopted in
Harper, was that the
Griffith
rule of retroactivity—that is, that newly announced constitutional
decisions should apply to all cases on direct review—should apply
to civil cases as well as criminal. See
American Trucking,
496 U. S., at 201 (Scalia, J., concurring in judgment) (“I share
Justice Stevens’ perception that prospective decisionmaking is
incompatible with the judicial role, which is to say what the law
is, not to prescribe what it shall be”);
id., at 212
(Stevens, J., dissenting) (“Fundamental notions of fairness and
legal process dictate that the same rules should be applied to all
similar cases on direct review”);
Harper, 509 U. S., at 97
(“When this Court applies a rule of federal law to the parties
before it, that rule is the controlling interpretation of federal
law and must be given full retroactive effect in all cases still
open on direct review”).
Neither Justice Scalia’s concurrence in
American Trucking combined with the dissent, nor the
Court’s opinion in
Harper, resolved that retroactivity was
a remedial question. That is why, the year after
American
Trucking was decided, two of the Justices in today’s majority
could explain:
“Since the question is whether the court should
apply the old rule or the new one, retroactivity is properly seen
in the first instance as a matter of choice of law, ‘a choice …
between the principle of forward operation and that of relation
backward.’
Great Northern R. Co. v.
Sunburst Oil &
Refining Co.,
287 U. S. 358, 364
(1932). Once a rule is found to apply ‘backward,’ there may then be
a further issue of remedies,
i.e., whether the party
prevailing under a new rule should obtain the same relief that
would have been awarded if the rule had been an old one. Subject to
possible constitutional thresholds, the remedial inquiry is one
governed by state law, at least where the case originates in state
court. See
American Trucking Assns., Inc. v.
Smith,
496 U. S. 167, 210 (1990) (Stevens,
J., dissenting).
But the antecedent choice-of-law question is a
federal one where the rule at issue itself derives from federal
law, constitutional or otherwise. See
Smith,
supra, at 177–178 (plurality opinion).”
James B. Beam
Distilling Co. v.
Georgia,
501 U. S. 529, 534–535
(1991) (opinion of Souter, J., joined by Stevens, J.) (citation
omitted; emphasis added).
And
Harper certainly did
not view the retroactivity of federal rules as a remedial question
for state courts. Quite the contrary:
Harper held that the
“Supremacy Clause does not allow federal retroactivity doctrine to
be supplanted by the invocation of a contrary approach to
retroactivity under state law,” 509 U. S., at 100 (citation
omitted), and expressly treated retroactivity and remedy as
separate questions,
id., at 100–102.
The majority explains that when we announce a
new rule of law, we are not “ ‘
creating the
law,’ ” but rather “ ‘
declaring what the law
already is.’ ”
Ante, at 21 (quoting
American
Trucking,
supra, at 201 (Scalia, J., concurring in
judgment)). But this has nothing to do with the question before us.
The point may lead to the conclusion that nonretroactivity of our
decisions is improper—the position the Court has adopted in both
criminal and civil cases on direct review—but everyone agrees that
full retroactivity is not required on collateral review. It
necessarily follows that we must choose whether “new” or “old” law
applies to a particular category of cases. Suppose, for example,
that a defendant, whose conviction became final before we announced
our decision in
Crawford v.
Washington,
541 U. S. 36 (2004),
argues (correctly) on collateral review that he was convicted in
violation of both
Crawford and
Ohio v.
Roberts,
448
U. S. 56 (1980), the case that
Crawford overruled.
Under our decision in
Whorton v.
Bockting, 549 U.
S. ___ (2007), the “new” rule announced in
Crawford would
not apply retroactively to the defendant. But I take it to be
uncontroversial that the defendant would nevertheless get the
benefit of the “old” rule of
Roberts, even under the view
that the rule not only is but always has been an incorrect reading
of the Constitution. See,
e.g.,
Yates, 484 U. S.,
at 218. Thus, the question whether a particular federal rule will
apply retroactively is, in a very real way, a choice between new
and old law. The issue in this case is who should decide.
The proposition that the question of
retroactivity—that is, the choice between new or old law in a
particular case—is distinct from the question of remedies has
several important implications for this case. To begin with,
whatever intuitive appeal may lie in the majority’s statement that
“the remedy a state court chooses to provide its citizens for
violations of the Federal Constitution is primarily a question of
state law,”
ante, at 24, the statement misses the mark.
The relevant inquiry is not about remedy; it is about choice of
law—new or old. There is no reason to believe, either legally or
intuitively, that States should have any authority over this
question when it comes to which
federal constitutional
rules of criminal procedure to apply.[
Footnote 3]
Indeed, when the question is what federal rule
of decision from this Court should apply to a particular case, no
Court but this one—which has the ultimate authority “to say what
the law is,”
Marbury, 1 Cranch, at 177—should have final
say over the answer. See
Harper,
supra, at 100
(“Supremacy Clause does not allow federal retroactivity doctrine to
be supplanted by the invocation of a contrary approach to
retroactivity under state law” (citation omitted)). This is enough
to rebut the proposition that there is no “source of [our]
authority” to bind state courts to follow our retroactivity
decisions.
Ante, at 26. Retroactivity is a question of
federal law, and our final authority to construe it cannot, at this
point in the Nation’s history, be reasonably doubted.
Principles of federalism protect the
prerogative of States to extend greater rights under their own laws
than are available under federal law. The question here, however,
is the availability of protection under the Federal
Constitution—specifically, the Confrontation Clause of the Sixth
Amendment. It is no intrusion on the prerogatives of the States to
recognize that it is for this Court to decide such a question of
federal law, and that our decision is binding on the States under
the Supremacy Clause.
Consider the flip side of the question before
us today: If a State interprets its own constitution to provide
protection beyond that available under the Federal Constitution,
and has ruled that this interpretation is not retroactive, no one
would suppose that a federal court could hold otherwise, and grant
relief under state law that a state court would refuse to grant.
The result should be the same when a state court is asked to give
retroactive effect to a right under the Federal Constitution that
this Court has held is not retroactive.
The distinction between retroactivity and
available remedies highlights the fact that the majority’s
assertion “that
Teague’s general rule of nonretroactivity
was an exercise of this Court’s power to interpret the federal
habeas statute,”
ante, at 13—even if correct—is neither
here nor there.[
Footnote 4]
While Congress has substantial control over federal courts’ ability
to grant relief for violations of the Federal Constitution, the
Constitution gives us the responsibility to decide what its
provisions mean. And with that responsibility necessarily comes the
authority to determine the scope of those provisions—when they
apply and when they do not.
This proposition—and the importance of the
distinction between retroactivity and available remedies—were
confirmed when we considered the availability of federal collateral
review of state convictions under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). See 28 U. S. C.
§2254(d)(1). Whatever control Congress has over federal courts’
ability to grant postconviction remedies, the availability or scope
of those remedies has no bearing on our decisions about whether new
or old law should apply in a particular case. That is why, after
AEDPA’s passage, we view the
Teague inquiry as distinct
from that under AEDPA. See
Horn v.
Banks,
536 U. S. 266,
272 (2002)
(per curiam) (“While it is of course a
necessary prerequisite to federal habeas relief that a prisoner
satisfy the AEDPA standard of review set forth in 28 U. S. C.
§2254(d), … none of our post-AEDPA cases have suggested that a writ
of habeas corpus should automatically issue if a prisoner satisfies
the AEDPA standard, or that AEDPA relieves courts from the
responsibility of addressing properly raised
Teague
arguments”). The majority today views the issue as simply one of
what remedies a State chooses to apply; our cases confirm that the
question whether a federal decision is retroactive is one of
federal law distinct from the issue of available remedies.
Lurking behind today’s decision is of course
the question of just how free state courts are to define the
retroactivity of our decisions interpreting the Federal
Constitution. I do not see any basis in the majority’s logic for
concluding that States are free to hold our decisions retroactive
when we have held they are not, but not free to hold that they are
not when we have held they are. Under the majority’s reasoning, in
either case the availability of relief in state court is a question
for those courts to evaluate independently. The majority carefully
reserves that question, see
ante, at 4, n. 4,
confirming that the majority regards it as open.
Nor is there anything in today’s decision
suggesting that States could not adopt more nuanced approaches to
retroactivity. For example, suppose we hold that the Sixth
Amendment right to be represented by particular counsel of choice,
recently announced in
United States v.
Gonzalez-Lopez,
548 U. S. 140 (2006), is
a new rule that does not apply retroactively. Under the majority’s
rationale, a state court could decide that it nonetheless will
apply
Gonzalez-Lopez retroactively, but only if the
defendant could prove prejudice, or some other criterion we had
rejected as irrelevant in defining the substantive right. Under the
majority’s logic, that would not be a misapplication of our
decision in
Gonzalez-Lopez—which specifically rejected any
required showing of prejudice,
id., at 147–148—but simply
a state decision on the scope of available remedies in state court.
The possible permutations—from State to State, and federal right to
federal right—are endless.
* * *
Perhaps all this will be
dismissed as fine parsing of somewhat arcane precedents, over which
reasonable judges may disagree. Fair enough; but I would hope that
enough has been said at least to refute the majority’s assertion
that its conclusion is dictated by our prior cases. This dissent is
compelled not simply by disagreement over how to read those cases,
but by the fundamental issues at stake—our role under the
Constitution as the final arbiter of federal law, both as to its
meaning and its reach, and the accompanying duty to ensure the
uniformity of that federal law.
Stephen Danforth’s conviction
became final before the new rule in
Crawford was
announced. In
Whorton v.
Bockting, 549 U. S. ___
(2007), we held that
Crawford shall not be applied
retroactively on collateral review. That should be the end of the
matter. I respectfully dissent.
Footnote 1
Payne came to us on direct appeal,
but as noted,
supra, at 4, we did not at the time
distinguish between direct appeal and collateral review for
purposes of retroactivity.
Footnote 2
The Court points out that the defendants in
such a case are differently situated because they violated the laws
of and were tried in different States.
Ante, at 26. But
disparate treatment under substantively different state laws is
something we expect in our federal system; disparate treatment
under the same Federal Constitution is quite a different
matter.
The majority also points out that the rule announced in
Griffith v.
Kentucky, 479 U. S. 314 (1987)—that full
retroactive application ends with the conclusion of direct
appeal—creates its own disuniformity, because finality turns on how
quickly a State brings its direct appeals to a close.
Ante, at 27. The same point was raised by the
Griffith dissenters, 479 U. S., at 331–332 (opinion of
White, J.), and rejected as pertinent by the majority in that case,
id., at 327–328. The disuniformity that the majority
emphasizes today and the dissenters emphasized in
Griffith
is a necessary consequence of our having chosen a relatively clear
rule—finality—to delineate the line between full retroactivity and
presumptive nonretroactivity. The relevant point is that whatever
inequity arises from the
Griffith rule, it is based on a
balancing of costs and benefits that
this Court—not 50
different sovereigns—has performed.
Footnote 3
A federal court applying state law under
Erie R. Co. v.
Tompkins,
304 U. S. 64 (1938),
follows state choice-of-law rules as well, see
Klaxon Co.
v.
Stentor Elec. Mfg. Co.,
313 U. S. 487, 496
(1941). It is not free to follow its own federal rule simply
because the issue arises in federal court. By the same token, a
state court considering a federal constitutional claim on
collateral review should follow the federal rule on whether new or
old law applies. It is not free to follow its own state-law view on
the question simply because the issue arises in state court.
Footnote 4
The majority’s assertion, however, is a bit
of an overstatement.
Teague would be an odd form of
statutory interpretation; 28 U. S. C. §2254 is cited once in
passing, 489 U. S., at 298, and §2243—the statute that the Court
believes
Teague was interpreting—is not cited at all. As
support for its proposition, the Court cites several cases having
nothing to do with retroactivity, and numerous concurring and
dissenting opinions that did not command a majority. See
ante, at 14–15, and n. 15.
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