Nineteen years ago this Friday, the U.S. Supreme Court virtually eliminated the retroactive application of newly created rules of criminal procedure on federal habeas corpus in its landmark decision in Teague v. Lane, 489 U.S. 288 (1989). Today, in Danforth v. Minnesota, No. 06-8273, the Court confirmed that Teague is a limitation on the remedy of federal habeas corpus, not a definition of the substantive scope of federal constitutional rights. Defendant Danforth has won a round in this case; he can now go back and argue to the Supreme Court of Minnesota that they should adopt a broader retroactivity rule. On the much larger battle, though, this is a win for the prosecution nationwide. The rationale of the decision pounds several more nails into the coffin of the argument that the "deference" standard of the Antiterrorism and Effective Death Penalty Act of 1996 is unconstitutional.
Nonretroactivity in constitutional criminal procedure was invented in the Warren Court era to mitigate the damage, and thereby lessen the backlash, resulting from the Court's runaway creation of new rules by "interpreting" the Bill of Rights to mean things it obviously did not mean and had never meant, such as excluding evidence based on the search by which it was obtained and mandating advisements before interrogation by police. Justice John Harlan initially went along with this to soften the impact of cases he thought were wrongly decided, but by 1969 he had had enough. "'Retroactivity' must be rethought." Desist v. United States, 394 U.S. 244, 258 (dissent).
On direct appeal, there was no justifiable basis for reversing Ernesto Miranda's conviction while other rapists similarly situated had their convictions affirmed. Habeas was different. As Justice Harlan explained two years later in another separate opinion, "The relevant frame of reference ... is not the purpose of the new rule whose benefit the petitioner seeks, but instead the purposes for which the writ of habeas corpus is made available." Mackey v. United States, 401 U.S. 667, 682 (1971). From its conception almost four decades ago, the rule we now call Teague was about the scope of the habeas corpus remedy, not the scope of federal constitutional rights.
As today's decision recognizes (slip op., at 7), the historical writ of habeas corpus (the one guaranteed in the Suspension Clause) was not available to collaterally attack the judgment of a court of competent jurisdiction, notwithstanding Justice Brennan's Orwellian rewrite of history in Fay v. Noia, 372 U.S. 391 (1963), discussed here. Congress can authorize the use of the writ for that purpose to the extent it deems appropriate, but it is not constitutionally required, and it is not an inherent power of the federal judiciary. The statute does not specify the extent to which judgments may be collaterally attacked based on changes in the law, so the Court fills in the gaps (slip op., at 13-15).
In its creation of the Teague rule, today's decision recognizes, the Court merely did what Congress could have done. Congress can specify the circumstances in which the federal writ of habeas corpus will be used to overturn otherwise final state judgments and in the circumstances in which it will not. Seven years after Teague, Congress did enact a different but related limitation on that use of the writ in 28 U.S.C. § 2254(d):
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States....
This statute was immediately attacked as a violation of Article III of the Constitution. Congress was purportedly telling courts how to decide issues of constitutional law. For the long version of this argument, see the Liebman and Ryan article at 98 Colum. L. Rev. 696 and my response in the same issue at 888. Liebman and Ryan made many of the same points as today's dissent. They characterized Teague as a "choice of law" rule rather than a limit on the habeas remedy, and they relied on Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995). My response took the approach of today's opinion of the Court. Teague is a limit on the habeas remedy. As today's opinion says,
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.
The Court can decide on the limits when Congress is silent, but once Congress speaks its word controls. This is true not only for retroactivity, but also whether a federal court can overturn the judgment of a state court merely because it disagrees with the state court on a question not yet resolved by the Supreme Court. In 1996, Congress changed the answer to that question from yes to no, and today's decision reinforces the conclusion that Congress was well within its power to do so.