Should the Court Be More Up-Front on Retroactivity?

In class the other day, Professor Garrett noted that the Court has not done a good job following its own advice that “the question whether a decision [announcing a new rule of law should] be given prospective or retroactive effect should be faced at the time of [that] decision.” Teague, CP p. 180 (internal quotation marks omitted). I’m not sure whether we can really fault the Court on this issue, and I wanted to get my thoughts down on (proverbial) paper to see if they make any sense.

Taken together, Teague and Griffith v. Kentucky provide the basic rules governing retroactivity. Under these cases, a new rule is retroactively applicable to cases on direct review, but not to cases on collateral review unless one of the two Teague exceptions is met. Previously, Linkletter had asked the courts to balance the purpose of the new rule, the reliance of the states on prior law, and the effect on the administration of justice of a retroactive application of the new rule in order to determine whether it should be applied retroactively. This sort of ad hoc standard would essentially amount to asking Justice Kennedy whether he thinks the rule should apply retroactively. Surely the Teague-Griffith approach represents a significant improvement, at least from the perspective of providing notice about whether a rule will be applied retroactively. Of course, two remaining sources of ambiguity remain whenever a new decision comes down: whether the rule is “new” and, if so, whether it falls into one of the Teague exceptions. Should we fault the Court if it fails to address these questions?

“New” Rules

First, it is important to note that the procedural posture of the Supreme Court case at issue may answer the question of whether the rule it adopts is new. If the case is on collateral review, then the rule it announces cannot be new—otherwise, the claim would have been treated like the fair cross-section claim in Teague and the Court could not have reached it (at least not without addressing the Teague exceptions and explicitly holding that the rule is retroactive).

So the question collapses to whether the Court should announce whether its decision in a case on direct review announces a “new” rule or simply clarifies an existing one. Basically, should the Court say “Oh, by the way, this is a new rule”? I think doing so would violate basic norms of judicial decision-making, since the Court would not have properly adverse parties before it and would be rendering an advisory opinion on the issue. When a case is on direct review, Griffith ensures that even a new rule will be applied to the defendant’s case, and the defendant can’t be expected to care much either way about how his conviction is overturned. By contrast, the State would probably have a strong incentive to litigate the “new rule” issue, since even if it loses it can at least limit the damage to cases on direct review. Faced with one party that has little inventive to argue an issue and another with a strong inventive, the Court would likely err systematically against the unrepresented interests of state prisoners.

Teague Exceptions

Should the Court announce with every decision whether it is enforcing a rule that will be retroactively applicable under one of the Teague exceptions? If I’m right that the Court shouldn’t even be announcing whether the rule in a given case is “new” or not, then I don’t see how it can address the Teague exceptions, since they only become relevant after it’s decided that a rule is new.

In any case, it should be relatively easy to determine whether a new rule has placed “certain kinds of primary, private individual conduct” beyond the criminal law and is therefore within the first Teague exception. And addressing the second Teague exception in the initial case announcing a rule just exacerbates the advisory opinion problem identified above: the defendant on direct review can have his conviction reversed whether or not the Court finds the rule to be a “watershed” in criminal procedure, so he can’t be trusted to press the issue effectively.