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A Closer Look at Bockting


Justice Alito's unanimous opinion in Whorton v. Bockting today is less than 14 pages, and half of that is the facts and case history portion. Why did it take nearly four months to write?  Perhaps it originally contained some bolder holdings which were dropped at some point in the process.

The opinion as issued is a strong reaffirmation of the nonretroactivity rule of Teague v. Lane, 489 U.S. 288 (1989), but it does not break any new ground. On the definition of a new rule, the opinion delivers a well-deserved rebuke to Judge Noonan of the Ninth Circuit, who advanced the preposterous thesis that Crawford v. Washington, 541 U.S. 36 (2004) was not a new rule despite the fact that it overruled a Supreme Court precedent. Today's opinion says it is "obvious" that reasonable jurists could have believed that Roberts, and not the rule that emerged in Crawford, was the law before Crawford, and indeed it is obvious.

On the so-called second Teague exception, the Court reaffirms that "it is unlikely that any [qualifying] rules have yet to emerge...." (internal quotes omitted, emphasis added).  Teague itself said "many" in 1989, and the significant change to "any" was made in Tyler v. Cain, 533 U.S. 656 (2001). The Court reaffirms once again that for a rule to qualify, it would have to be as big a deal as Gideon v. Wainwright, 372 U.S. 335 (1963) and there haven't been any such blockbusters in many years. Unfortunately, the Court once again refrained from officially pronouncing the second exception dead, so resources will continue to be wasted litigating a phantom exception. Was this the price of unanimity?

Unmentioned by the opinion was the hotly contested question of whether the AEDPA deference standard, 28 U.S.C. § 2254(d), implicitly incorporates the Teague exceptions. We know from Horn v. Banks, 536 U.S. 266 (2002), that this standard and Teague are independent limitations on habeas relief, neither depending on nor supplanting the other. This issue must await another case.

Does today's opinion have any implications for the retroactivity of Blakely v. Washington, 542 U.S. 296 (2004)? To my mind, the Court's reaffirmation of Tyler that it is unlikely any qualifying rules have yet to emerge is the most significant. The Court took briefing and heard argument on whether Blakely was retroactive on habeas in Burton v. Stewart, although the case was decided on other grounds, so the Court is well aware of the issue. It would seem odd to quote Tyler in this way if the Justices intended to rule in the near future that a rule that emerged after Tyler did qualify. The main issue in the Apprendi line will probably not be whether any case qualifies for an exception to Teague, but rather which cases in the line are new rules and which are merely applications of prior cases in the line.

On a nonhabeas point, the Court mentioned in passing that after Crawford nontestimonial out-of-court statements are not subject to the Confrontation Clause at all. That confirms my interpretation of Crawford, but many people have argued and some courts have accepted that the Roberts rule still applied to nontestimonial statements.


you have to wonder what the Supreme Court's caseload would be like without the 9th Circuit

Crawford explicitly reserved judgment on the question of whether defendants have a right to cross-examine regular hearsay. The Court pulled a fast one yesterday and re/mischaracterized Crawford.

Which makes the unanimity just baffling.

Ward, I more often think of what it would be like without California, Texas, and Virginia.

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