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Teague, Kagan, and Sotomayor

From reading the opinions in Chaidez v. United States this morning one thing becomes very clear.  Justice Kagan understands the rule of Teague v. Lane.  Justice Sotomayor does not.  It's not just that she misapplies it in a close case.  She genuinely fails to understand what it is about.

Once upon a time, judges pretended that they did not make law but merely discovered what the law had always been.  Once we got past that conceit, judges had to grapple with the question of when changes made through case law would apply retroactively.  Initially, the Warren Court came up with a subjective, hard-to-predict approach that sounded more like legislating than adjudication.  That was the Linkletter-Stovall rule.  Justice Harlan went along at first but later proposed a more categorical approach.  All new rules of procedure would apply to cases on direct review, but not on habeas corpus to cases where the judgment has already become final on appeal.  The Supreme Court adopted the first half in Griffith v. Kentucky in 1987 and the second half in Teague v. Lane in 1989.

When is a rule "new"?  The Supreme Court adopted an expansive definition.  A rule is new if it was not dictated by precedent existing at the time the judgment became final.  A rule can be a logical extension of existing principles and precedents and still be "new" for Teague.  This is the part Justice Sotomayor apparently doesn't get.
In multiple decisions, the Supreme Court has said that one must look at the legal landscape before the precedent in question.  Justice Kagan's opinion for the Court today does just that.  Before Padilla v. Kentucky, the rule was nearly universal that failure to advise a client on collateral consequences of a conviction, including immigration consequences, was not a Sixth Amendment violation.  The Sixth Amendment guarantees "the accused shall enjoy the right ... to have the assistance of counsel for his defence."  It doesn't say anything about counsel for one's immigration issues.

But the Supreme Court decided otherwise in Padilla.  In the process, it marshaled various arguments, including implications from another immigration-related case and evolving ABA standards.  Does that mean Padilla wasn't a new rule, despite overruling the overwhelming weight of lower court authority?  Justice Sotomayor seems to think so:

Where the application of Strickland was straightforward, rooted in 15 years of professional standards and the Court's prior St. Cyr decision, there is no reason to put these lower court cases, many from more than a decade earlier, ahead of this Court's simple and clear reasoning in Padilla. Nevertheless, the majority reaches the paradoxical conclusion that by declining to apply a collateral consequence doctrine the Court had never adopted, Padilla announced a new rule.
The word "ahead" betrays a fundamental misunderstanding.  Justice Sotomayor appears to be confusing the question of whether Padilla announced a new rule with the very different question of whether it was correctly decided.  Padilla did not address the question of whether it was creating a new rule, so nothing is being put "ahead" of Padilla.  When a court weighs two sets of arguments and finds one more persuasive, it is not saying the other set is obviously wrong.  The balance of persuasion is the question when we ask if a case was correctly decided; the obviousness is the question when we ask if it created a new rule.  The existence of a large body of case law, not a scattered handful of rogue opinions, contrary to new Supreme Court precedent is conclusive that the rule is "new" for the purpose of Teague.

The good news is that seven Justices of the high court get it.  Although Justice Thomas concurred on other grounds in this case, we know from other opinions of his that he is fully on board with the Teague rule.  This important protection for the finality of criminal judgments appears secure for the foreseeable future.


Under Teague shouldn't the court have first considered as a threshhold question in the Padilla decision whether they were being asked to create a new rule?

If I recall correctly, the case arose on state collateral review, and neither the prosecution nor the state court raised the retroactivity issue.

State courts do not have to follow Teague on state collateral review (Danforth v. Minnesota), although they should (Danforth on remand).

Teague is not jurisdictional, and the state can default the issue by not raising it, although the court has discretion to consider it anyway.

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