Wednesday, February 20, 2008
The Supreme Court yesterday decided in Danforth v. Minnesota that the States may apply new rules of federal constitutional law retroactively even if the Court itself has determined that retroactive application is unnecessary pursuant to Teague v. Lane. The vote was 7-2, with Chief Justice Roberts, joined by Justice Kennedy, dissenting. You can read the decision here.
To my mind, the majority has the better view of Teague as a judicial gloss on the federal habeas statute, rather than as a generalizable aspect of retroactivity. And the Chief Justice's beating of the drums of "uniformity" in dissent strikes me as an example of the faux-federalism often championed by his former boss in criminal cases: alternatively advocating uniformity or diversity, depending on which happened to further the pro-prosecution cause in a particular case.
But what is troubling about the decision is that, in several critical passages, it is highly formalistic, treating the law as an entity that "exists," and positing that the duty of judges is to discover rather than create the law. According to this notion, when the Court decided Crawford, it was simply telling us what the law always was: we just didn't know it. I had thought that this kind of thinking had been buried by Erie's dismissal of the idea that law is some "brooding omnipresence." More to the point, this seems inconsistent with the very notion established by Teague that there are any "new" rules of constitutional law. This reasoning, I think, explains the unusual line-up of Justices Scalia, Thomas, and Alito joining the four more moderate Justices. [Mike Mannheimer]