The transcript of oral argument in Whorton v. Bockting, argued today, is available on the Court's site here. Lyle Denniston positively gushes at SCOTUSblog. Here are some notes.
Chief Justice Roberts and Justice Alito appear to have concluded that there is no retroactivity exception for § 2254(d). If the state court decision was correct or at least reasonable under the precedent existing at the time, the judgment cannot be overturned on federal habeas corpus (39:16-19; 41:9-12). Textually, there is simply no way to read the Teague exceptions into § 2254(d). References to retroactive new rules elsewhere in the statute are not superfluous, the Nevada Attorney General correctly notes (5:2-14), because they apply in cases where there is no state court decision on the merits, e.g., a defaulted claim with cause and prejudice.
One of the arguments against such an interpretation is that it might preclude relief even in the cases of substantive new rule, i.e., that a particular act cannot be made criminal (e.g., Lawrence v. Texas) or that a particular group of defendants is exempt from a punishment (e.g., Atkins v. Virginia). Justice Ginsburg raises this at 6:17-21. The answer on page 21 of CJLF's brief is that in practice state courts reopen the cases where these very rare new rules apply, and the deference standard then applies to that new decision. Justice Scalia seems to be thinking along these lines (9:11-13).
Later (14:19-25), Justice Scalia draws an analogy between bedrock principles of criminal procedure and obscenity: "you know it when you see it." He notes at 28:3-10 that the prior rule did not necessarily produce unreliable results.
The U.S. Solicitor General, having taken a chunk of the state's time, refuses to address the most important question on page 18 because it doesn't apply to federal criminal prosecutions. With amici like these....
Justice Kennedy notes at 11:21-22 that "Crawford did use the term 'bedrock.'" He also makes a disparaging remark to the DSG at 20:11-14. However, during the defense argument, he says this in a discussion of how the Crawford rule isn't categorically more reliable than the prior Roberts rule: "With a rule-made jurisprudence, we have to look at the rule in the whole universe of cases, not just your case. It seems to me that was the problem you had in arguing in this area, and maybe you can suggest some way out. I don't see it." (33:1-5).
Justice Breyer asked no questions of the Nevada AG or the DAG and several of the defense. One of them begins, "So if you lose this case...." (37:18). Those are words you don't want to hear.
In Schriro v. Summerlin, 542 U.S. 348 (2004), Justices Scalia and Thomas stood by a strict view of retroactivity on habeas even though they had strongly supported the underlying rule. If they do so again here, it is hard to see how the defense can prevail. We shall see.