More Than Slightly Retro: The Rehnquist Court’s Rout of Habeas Corpus Jurisdiction in Teague v. Lane


Someone I know, more a student of contemporary fashion than I, sometimes describes people dressed in uniformly dark clothing as “slightly retro.” I am not sure of the allusion, I but what I can discern leads me to think that the Supreme Court’s nonretroactivity decisions beginning with Teague v. Lane are – puns aside – more than just “slightly retro.”

The Court’s innovation may be stated as follows: For 160 years, Congress empowered federal judges to order state officials to release or retry individuals held in custody in violation of federal law as those federal judges, and not the state officials, interpreted that law. In 1989 and 1990, in the absence of statutory revision, the Court announced a series of decisions’ holding that federal judges henceforth may order incarcerated individuals released or retried only if those judges find a violation of federal law not only by their own lights but also by the lights of all “reasonable” state judges, including the judges who pronounced and affirmed the applicant’s conviction in the first place. In the guise of a series of prudential nonretroactivity holdings, the Court has replaced a statute giving every federal judge jurisdiction to remedy all “custody” that she independently determines to be “in violation of the Constitution” with a statute forbidding those judges to remedy custody unless they can say that all “reasonable” judges in the country would find a violation.

For anyone who considers habeas corpus to be an important aspect of the nation’s structure of judicially enforced civil rights and civil liberties, the Court’s jurisdictional innovation is “retro” indeed. It casts a uniformly somber pall over the longstanding right of state prisoners to enlist politically detached judges in assessing the legality of the prisoners’ convictions and sentences, and it comes as close as any other event to encapsulating the Rehnquist Court’s current fashion of looking darkly upon the rights of individuals – especially condemned individuals – whose liberty has been withdrawn and whose lives have been placed at risk by state criminal justice systems. If Warren Burger led “The Counter-Revolution that Wasn’t,” then Teague reveals William Rehnquist in the vanguard of the Thermidor that is.

There are a number of perspectives from which one could assay the impact of the Court’s new criminal nonretroactivity holdings. I can only briefly assume most of those perspectives here, leaving more comprehensive analysis for another day.

First, from the standpoint of practical consequences, particularly for the 2500 men and women on death row across the country who form the focus of this Symposium, the Court’s innovation threatens to make close to a legal irrelevancy of the fact that many or most state capital sentences in this country are meted out in violation of the Constitution. More specifically, the nonretroactivity doctrine may considerably deflate the existing 40-60% reversal rate in capital cases and considerably inflate existing execution rates.

From the standpoint of Supreme Court practice, the innovation is noteworthy because the Court accomplished it in six decisions, in two-thirds of which – including Teague itself – the determinative issue was not briefed by the parties or asserted as a basis for decision by the state.

In addition, the new decisions accomplish a remarkable transformation from the standpoint of constitutional decisionmaking. Before Teague, habeas corpus fairly could be described as an adjudicative, quasi- or super-appellate process in which national courts (mainly the lower federal courts acting as surrogates for the Supreme Court) used adversary procedures to establish national constitutional policy in the process of reviewing state court convictions and sentences. The Teague line of cases has replaced that judicial-appellate process with what amounts to an administrative process: State courts (acting in default by the Supreme Court, given the limits of the Court’s certiorari jurisdiction) are delegated the critical day-to-day role in national constitutional policymaking, subject only to the loosest instructions from the Supreme Court and the Constitution; lower federal courts (acting pursuant to what amount to nonadversary bureaucratic procedures) retain only the minimal supervisory task of reviewing state judicial actions for “reasonableness” and substantial evidence.

The Court’s innovation is also worth analyzing from the perspective of constitutional history. Modern habeas corpus took shape in one of the great nationalizing statutes, the Habeas Corpus Act of 1867, enacted during one of the country’s great nationalizing periods, Reconstruction. Teague‘s transfer of constitutional policymaking authority from the national to the state courts accordingly is an important step in, and emblematic of, the Court’s recent assault on the nationalizing force, not only of the Habeas Corpus Act, but also of the fourteenth amendment and federal judicial review pursuant to that amendment.

The Court’s decisions may be most interesting, however, from the stand-point of contemporary legal theory. On one view, the Court’s decisions are simply an instance of its current obsession with democratic decisionmaking: As long as the majestic generalities of the fourth, fifth, sixth, and eighth amendments remain in the Constitution and apply to the states, judicial decisionmaking in criminal cases necessarily will include constitutional policy-making; as between state and federal judicial policymakers, state judges (so the Court’s credo has it) are democratically preferred to federal judges because the former are elected or at least are more susceptible to local political controls than are the latter. This justification is troublesome enough given that the attributes of state and federal judges on which it relies have heretofore been understood to create strong reasons for preferring federal judicial policy makers.

More interesting and more troubling, however, is the linkage that appears to be developing between the modem Court’s democratic theory – exalting “will” (the people’s, supposedly) over “reason” (the federal courts’, usually) – and an almost Critical Legal Studies attitude towards judicial reasoning and the judicial function. At the level of practice, for example, the Court’s announcement of these major doctrinal shifts took place (1) without briefing and argument, (2) in opinions that read as if to say that the presence of five votes is a sufficient explanation for the outcome, and (3) with no deference at all to the traditional requirement that judges confine themselves to the issue as narrowly framed by the facts of the particular case, rather than as posed by all imaginably similar cases. The Court thus dispensed with virtually every procedural and even rhetorical distinction that traditionally has differentiated judging from legislating.

At the level of substance, moreover, the Court even more clearly has obliterated any legitimate or legitimizing distinction between judges and legislators. Thus, by defining the concept of “new rules of law” so broadly, the Court insists that virtually every imaginable act on its part of what used to be called constitutional law-finding or adjudication is exposed instead as an act oflawmaking or legislation that, as such, deserves merely prospective effect. Lest the implication be left that it is only federal judges and Justices whose adjudicative endeavors are legislative acts, the Court has gone on to adopt a “rational basis” level of habeas corpus review of state judges’ decisions that mimics the level of review traditionally reserved for legislative, as opposed to judicial, exercises in legalism. If the Court next extends its nonretroactivity presumption to cases requiring the resolution of so-called “mixed questions of fact and law,” the Court’s analysis also will threaten the distinction between fact-finding and law-interpreting that judges, but not legislators, traditionally have maintained, and will further legitimate critical attacks on the common law process of incremental decisionmaking as being nothing more than myriad decentralized exercises of political power.

Although I hope to say something about these and other implications ofTeague elsewhere, I want here simply to describe and draw out the doctrinal implications of Teague‘s jurisdiction-limiting innovation in all its darkly hued splendor. In keeping with the subject matter of this Symposium, it also will be my intention to alert constitutional lawyers – especially those advocating on behalf of incarcerated and condemned prisoners, those adjudicating their petitions, and those in Congress – to the places at which doctrinal bulwarks remain, or ought to be erected, against the Rehnquist Court’s continuing rout of habeas corpus jurisdiction.

Part I provides an overview of the Court’s treatment of nonretroactivity in the criminal context, then compares that treatment to the Court’s divergent approach to retroactivity in the civil context. Confronting the issues the Teague doctrine poses in the order courts and advocates are likely to addressthem, Part II then discusses whether retroactivity is more properly understood as a threshold issue or a defense; Part III considers what recent or proposed decisions present retroactivity issues because they are “new;” Part IV considers when cases become “final,” hence susceptible to Teague’s presumptive rule of nonretroactivity of “new” decisions; Part V examines the two exceptional situations in which new decisions do apply retroactively in cases that have become final; and Part VI discusses the burden of proving and pleading the Teague nonretroactivity bar. Following Part VII’s discussion of the retroactivity of new rulings that are unfavorable to habeas corpus petitioners, the Article concludes with an argument for congressional repeal of Teague.

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