Can Justices Invoke Their Own Incentives?

My latest FindLaw column attempts to explain the issue and the result in last week's Supreme Court decision in Danforth v. Minnesota. The case holds that state courts are free, on state habeas, to give retroactive effect to U.S. Supreme Court rulings that, according to the Supreme Court, they are not required to treat as retroactive. This is a very technical and confusing area of law, and so writing about it for a lay readership may be a fool's errand, but if so, I'm just the fool to do it!

In the course of explaining the background law, my column gives the following argument for the rule of Teague v. Lane, which generally forbids federal district courts from granting habeas relief to state prisoners based on "new rules" of federal law announced after the date on which the prisoner's conviction became final:

A contrary rule [c]ould . . . create a disincentive for the Justices to recognize constitutional rights: If recognizing a new constitutional right required new trials for defendants who had originally been tried decades earlier, then the Justices would be very reluctant ever to recognize new rights.

This sort of argument about the proper incentives for doctrinal development is not novel. For example, Virginia Law School Dean John Jeffries advanced a version of it in a 1999 essay in the Yale Law Journal in a slightly different context, explaining why our legal regime favoring injunctions against future violations, but disfavoring money damages, makes sense. Jeffries said there:

[L]imiting money damages for constitutional violations fosters the development of constitutional law. Most obviously, the right-remedy gap in constitutional torts facilitates constitutional change by reducing the costs of innovation. The growth and development of American constitutionalism are thereby enhanced.

Perhaps not surprisingly, the Supreme Court has not (to my knowledge, though I'd be happy to be corrected) offered this justification for its own doctrine. It would, after all, be awkward for the Justices to admit that they are trimming their best judgment about what the Constitution requires in order to avoid results they don't like. Indeed, in Danforth itself last week, Justice Stevens, quoting an earlier concurrence in the judgment by Justice Scalia, ringingly endorsed formalism as accounting for its own decision-making process. Justice Scalia, quoted approvingly in full by Justice Stevens, wrote:

To hold a governmental Act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it; and when, as in this case, the constitutionality of a state statute is placed in issue, the question is not whether some decision of ours 'applies' in the way that a law applies; the question is whether the Constitution, as interpreted in that decision, invalidates the statute. Since the Constitution does not change from year to year; since it does not conform to our decisions, but our decisions are supposed to conform to it; the notion that our interpretation of the Constitution in a particular decision could take prospective form does not make sense.

Sure, in some sense that's what they have to say, but of course the very existence of a body of a doctrine governing the application or non-application of "new rules" of constitutional law shows that this is at best a legal fiction.

Posted by Mike Dorf