An Easy Retroactivity Case Made Difficult — Part III, Teague‘s Phantom Exception

This post concludes the series on the U.S. Supreme Court case of Edwards v. Vannoy, No. 19-5807, argued December 2. The question presented is whether the Court’s decision last term in Ramos v. Louisiana is retroactive to overturn judgments that were already final on direct appeal when the decision came down. On the well-established body of law under Teague v. Lane, the answer is very clearly no, yet the Court seemed to have a surprising amount of difficulty with it during the argument.

The previous two posts (see index at the end) demonstrated that the conditions for the Teague rule to come into play were met. Ramos is certainly a “new rule” within the meaning of the Teague cases. It is a rule of procedure and not substantive law. The remaining question is whether it qualifies for an exception that no new rule in the three decades since Teague has qualified for. The answer, again, is clearly no.

The Background

Why should a rule have an exception that is never met? That question prompted some discussion during the oral argument. In the famous words of Justice Holmes, “Upon this point a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).

The discussion below repeats to some extent my Teague Primer post earlier in the series, but it is better to be repetitive than to have too many cross-references back to the previous post.

The Warren Court Rule and the Harlan Proposal

So climb aboard your favorite time machine and let’s travel back over half a century to March 1969. The Supreme Court under soon-to-retire Chief Justice Earl Warren had spent the previous decade adopting new constitutional rules of criminal procedure at a breakneck pace, some entirely new (e.g., Miranda) and some only newly applied to state courts although they had long applied to federal courts (e.g., trial by jury). Over the previous four years, the Court had established a standard, if you can call it that, for when its new rules would apply retroactively, in contrast to earlier practice where all criminal law precedents were retroactive. Justice Harlan had gone along with non-retroactivity initially as damage control for decisions he thought were “profoundly unsound in principle,” but the results of the Warren Court’s vague and subjective test were incoherent:

We have held that certain “new” rules are to be applied to all cases then subject to direct review, Linkletter v. Walker, supra; Tehan v. Shott, 382 U.S. 406 (1966); certain others are to be applied to all those cases in which trials have not yet commenced, Johnson v. New Jersey, 384 U.S. 719 (1966); certain others are to be applied to all those cases in which the tainted evidence has not yet been introduced at trial, Fuller v. Alaska, 393 U.S. 80 (1968); and still others are to be applied only to the party involved in the case in which the new rule is announced and to all future cases in which the proscribed official conduct has not yet occurred. Stovall v. Denno, 388 U.S. 293 (1967); DeStefano v. Woods, 392 U.S. 631 (1968).

Desist v. United States, 394 U.S. 244, 257 (1969).

The approach had little basis in constitutional principle and was largely just the Warren Court acting in its frequent role as super-legislature, deciding what would be good policy and then declaring that the Constitution requires it. On principle, Justice Harlan concluded, if the Court decides that a given result is required for one defendant whose case is still on direct review, then it must be applied to all others similarly situated, i.e., still on their initial, direct appeal. As for habeas corpus, the situation was different. Absent any statute specifying what claims will be considered sufficient to collaterally attack a final judgment, it has fallen to the courts to make that determination, and the Supreme Court has varied the rules throughout history. The scope had expanded enormously in the preceding 16 years, due to Brown v. Allen, 344 U.S. 443 (1953) and Fay v. Noia, 372 U.S. 391 (1963). Justice Harlan’s initial proposal was to narrow that scope and apply new rules retroactively on habeas corpus if they “significantly improve the pre-existing fact-finding procedures.”

Two years later, Justice Harlan offered a more developed view of his proposal in Mackey v. United States, 401 U.S. 667 (1971). His proposed general rule was that “it is sounder, in adjudicating habeas petitions, generally to apply the law prevailing at the time a conviction became final than it is to seek to dispose of all these cases on the basis of intervening changes in constitutional interpretation.” Id., at 689.

Justice Harlan proposed “two exceptions to this general principle.” The first was for “substantive due process” rules that prevent the government from punishing the defendant’s conduct. He was likely thinking of the contraception case, Griswold v. Connecticut, 381 U.S. 479 (1965), where he concurred in the judgment on due process grounds but refused to go along with Justice Douglas’s notorious “penumbras and emanations” approach to the Bill of Rights. This may be thought of as an exception to the general rule of non-retroactivity or a limitation on the scope of that general rule to procedural matters only. See Schriro v. Summerlin, 542 U.S. 348, 352, n. 4 (2004). Either way, it is not implicated in the Edwards case; Ramos is indisputably a procedural rule and not a substantive one.

The second exception, Justice Harlan proposed, was for “nonobservance of those procedures that, as so aptly described by Mr. Justice Cardozo in Palko v. Connecticut, 302 U.S. 319, 325 (1937), are ‘implicit in the concept of ordered liberty.’ ” While Justice Harlan finds that description “apt,” I find it utterly unhelpful in sorting out rules. A much better description, in my view, can be found further down the same page in Palko. The set of rules we are talking about are those so fundamental “that a fair and enlightened system of justice would be impossible without them.”

This is not the same set of rules that the Framers wrote into the Bill of Rights or the rules that prevailed at common law. The two sets overlap a great deal, to be sure, but each includes rules not contained in the other. Two examples suffice to demonstrate this. At common law, and under the Fifth Amendment for federal cases, indictment by a grand jury is an essential prerequisite to a felony prosecution. The grand jury is not considered an important protection for defendants today, much less an essential one. It is common to say, dismissively, that a prosecutor can get a grand jury to indict a ham sandwich. The substitute of a preliminary hearing is widely regarded as better for defendants. The Supreme Court held that the grand jury requirement was not binding on the states in Hurtado v. California, 110 U.S. 516 (1884), and it has never questioned that holding since.

On the other hand, making a layman, perhaps even an uneducated one, defend himself against a professional prosecutor was considered acceptable at common law and under the Sixth Amendment as originally understood. Today, though, we would say that appointed counsel for indigent defendants is so essential “that a fair and enlightened system of justice would be impossible without it.” Gideon v. Wainwright, 372 U.S. 335 (1963) was only eight years old when Justice Harlan wrote his Mackey opinion, and he cited that case saying that he would continue to support applying it retroactively. Even though it was a new rule in 1963, and not one required by the Bill of Rights as it was understood upon its adoption in 1791, Gideon represented a “bedrock procedural element” that was essential to a fair trial.

From Mackey to Teague

Justice Harlan’s overall view of retroactivity gradually gained adherents on the Supreme Court after his death, but his views on what constitutional limitations apply to the states did not. Palko was part of the latter debate. The view that Fourteenth Amendment incorporates almost all of the Bill of Rights to its full extent has become dominant. (I say “almost” because grand jury indictment in felony cases and jury trials in civil cases over $20 are still not federal constitutional requirements in state courts. There is no word yet on the Third Amendment because states have not tried to quarter soldiers in private homes in peacetime, and it is unlikely they ever will.)

As noted in the Teague Primer post, the Supreme Court’s adoption of Justice Harlan’s view of retroactivity came gradually. In Brown v. Louisiana, 447 U.S. 323 (1980), a direct appeal case, the Court held that its decision the previous year that 6-person juries must be unanimous would apply retroactively. While a plurality would have made that rule retroactive across the board, Justices Powell and Stevens concurred in the judgment only and cast the deciding votes to reverse Brown’s conviction only because it was a direct appeal case. Justice Powell had been the leading proponent of the Harlan view for several years at that point. The Harlan view was adopted by the Court for direct appeals in 1987 and for habeas corpus in Teague. See the Teague Primer post.

The Second Teague Exception

The paragraphs of Teague describing the second exception is quoting in full, along with an edited version of the Teague  Court’s application of it to Teague’s proposed new rule. The proposal was to adopt a Sixth Amendment prohibition of discriminatory jury challenges on top of the Equal Protection rule adopted three years earlier, which had already been declared not retroactive (bold face added):

We believe it desirable to combine the accuracy element of the Desist version of the second exception with the Mackey requirement that the procedure at issue must implicate the fundamental fairness of the trial. Were we to employ the Palko test without more, we would be doing little more than importing into a very different context the terms of the debate over incorporation. Compare Duncan v. Louisiana, 391 U.S. 145, 171-193 (1968) (Harlan, J., dissenting), with Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). Reviving the Palko test now, in this area of law, would be unnecessarily anachronistic. Cf. Benton v. Maryland, 395 U.S. 784, 794-795 (1969) (overruling Palko and incorporating the Double Jeopardy Clause). Moreover, since Mackey was decided, our cases have moved in the direction of reaffirming the relevance of the likely accuracy of convictions in determining the available scope of habeas review. See, e.g., Kuhlmann v. Wilson, 477 U.S., at 454 (plurality opinion) (a successive habeas petition may be entertained only if the defendant makes a “colorable claim of factual innocence”); Murray v. Carrier, 477 U.S., at 496 (“[W]here a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default”); Stone v. Powell, 428 U.S., at 491-492, n. 31 (removing Fourth Amendment claims from the scope of federal habeas review if the State has provided a full and fair opportunity for litigation creates no danger of denying a “safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty”). Finally, we believe that Justice Harlan’s concerns about the difficulty in identifying both the existence and the value of accuracy-enhancing procedural rules can be addressed by limiting the scope of the second exception to those new procedures without which the likelihood of an accurate conviction is seriously diminished.

Because we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge. We are also of the view that such rules are “best illustrated by recalling the classic grounds for the issuance of a writ of habeas corpus — that the proceeding was dominated by mob violence; that the prosecutor knowingly made use of perjured testimony; or that the conviction was based on a confession extorted from the defendant by brutal methods.” Rose v. Lundy, 455 U.S. 509, 544 (1982) (Stevens, J., dissenting) (footnotes omitted). [Footnote indicating that application to capital cases was not before the Court and can be considered in a future case.]

An examination of our decision in Taylor applying the fair cross section requirement to the jury venire leads inexorably to the conclusion that adoption of the rule petitioner urges would be a far cry from the kind of absolute prerequisite to fundamental fairness that is “implicit in the concept of ordered liberty.” … But as we stated in Daniel v. Louisiana, 420 U.S. 31, 32 (1975), which held that Taylor was not to be given retroactive effect, the fair cross section requirement “[does] not rest on the premise that every criminal trial, or any particular trial, [is] necessarily unfair because it [is] not conducted in accordance with what we determined to be the requirements of the Sixth Amendment.” Because the absence of a fair cross section on the jury venire does not undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction, we conclude that a rule requiring that petit juries be composed of a fair cross section of the community would not be a “bedrock procedural element” that would be retroactively applied under the second exception we have articulated.

I said in the Teague Primer post that Teague had discarded the Palko test, but it’s more nuanced than that. Teague does say that reviving the Palko test without more would be “anachronistic,” but then it repeats the Palko language a couple of paragraphs later. The Teague plurality’s reference to an “absolute prerequisite to fundamental fairness” harkens back to Palko‘s reference to rules so fundamental “that a fair and enlightened system of justice would be impossible without them.” The combination with the accuracy test of Desist clarifies that we are talking only about rules that prohibit practices that are fundamentally unfair because they have a strong possibility of producing factually false convictions.

Some rules might be considered unfair, and even fundamentally so, for some other reason other than accuracy of the fact-finding process. The rule that the defendant cannot be required to testify comes to mind. Trials would likely be more accurate if we could, but we don’t. The same is true for the rule actually at issue in Palko, that the prosecution cannot appeal an acquittal. Rules like this are excluded by the Desist part of the test.

A great many rules improve accuracy to some degree, but the Mackey part excludes all but those that are essential to a fair trial. Justice Harlan gave one example: Gideon. Teague gave three more: mob-dominated trials, knowing use of perjured testimony, and confessions beaten out of the suspect. All of these rules were recognized in the early to middle twentieth century for good reason. The more unfair a practice is and the more likely it is to produce false convictions, the sooner the Supreme Court is likely to strike it down.

The Questions

With that background, let us go to selected questions on the second Teague exception from the Edwards v. Vannoy argument:

Defining the Second Exception

Transcript p. 8, ln. 19:

JUSTICE THOMAS: … Counsel, we agree this is a — unlike Montgomery, this is a procedural rule. So can you — other than Gideon, can you think of another case where we have said that a procedural rule was retroactive?

Yes. Teague itself gave three examples of rules that (like Gideon) are so fundamental that they would have met the test, had it been in effect at the time: mob domination of the trial (Moore v. Dempsey, 261 U.S. 86 (1923)), knowing use of perjured testimony (Mooney v. Holohan, 294 U.S. 103 (1935)), and extraction of a confession by brutal means (Brown v. Mississippi, 297 U.S. 278 (1936)). See the block quote above. Not coincidentally, all of these examples are quite old, even older than Gideon. That is because nearly all safeguards that are essential to a fair trial were recognized as due process requirements long before the incorporation push of the 1960s.

p. 15, ln. 5:

JUSTICE ALITO: Another oddity about applying the —the watershed rule inquiry in this particular case is that the test for a watershed rule depends pretty heavily on Justice Harlan’s decision, his opinion in the Mackey case, which — where he relied on exactly the rationale, the concept of ordered liberty, Palko versus Connecticut rationale, that the lead opinion in Ramos excoriated. So is —would it be consistent to apply it here?

Palko is long dead and long buried as the test for what rights from the Bill of Rights are incorporated and made applicable to the states via the Fourteenth Amendment. It was already dead in 1989, and Teague acknowledged that incorporating Palko “without more” as the test for retroactivity would be “anachronistic.” What Teague said is that the idea that some rights are essential to a fair trial and some are not, even though they are part of our history, is useful in drawing the line between the rules that warrant the highly disruptive step of overturning final convictions and those that do not. Ramos excoriated Justice Powell’s approach to incorporation, which was the question at issue in that direct appeal case. Retroactivity on habeas corpus is a different question that was not at issue. So no, it is not inconsistent or odd to faithfully follow Teague on this different question.

p. 19, ln. 8:

JUSTICE KAGAN: … [A]re you talking about accuracy in some different sense? Your first sentence to us was, “A verdict by a nonunanimous jury is no verdict at all.” And then you talked about a verdict can be inaccurate and unfair even though it leads to the right decision.

And I guess what I’m asking is, are you talking about and do you think in our cases we’ve been talking about accuracy in some different sense than simply the reduction of errors in whatever direction?

The accuracy prong, taken from Justice Harlan’s original proposal in Desist, screens out all new rules that do not make substantial improvements in the accuracy of the trial. An accurate result is that the defendant is convicted if he is guilty and acquitted if he is innocent. No, a verdict cannot be “inaccurate” for this purpose if it leads to the right decision.

Rules adopted to vindicate values other than accuracy of the result are categorically excluded from retroactivity on habeas corpus. First and most obviously, that excludes all Fourth Amendment rules that affect criminal trials only through the exclusion of evidence without regard to its reliability.

p. 20, ln. 1:

JUSTICE BARRETT: Mr. Belanger, I want to press you a little bit more on Justice Kagan’s questions to you about what accuracy means, because when I heard your answers to Justice Kagan, it was hard for me to distinguish between your view of the accuracy prong and your view of the bedrock procedural element prong, the fairness of the proceeding, because you kept saying, well, it’s possible for a nonunanimous jury verdict to have reached the right result, i.e., maybe convicting someone who actually, in fact, had committed the crime, while still being unfair.

Can you — can you help me understand a —a little bit more how your two prongs are distinct of what “accuracy” means?

In Teague, Justice Stevens correctly described the plurality’s approach to the second exception while disagreeing with it. By combining the Desist accuracy test with the Mackey fundamentalness test, the plurality “link[ed] the fundamental fairness exception to factual innocence.” See 489 U.S., at 321. However, Justice White grumblingly agreed that the plurality’s approach was “an acceptable application in collateral proceedings of the theories embraced by the Court in cases dealing with direct review,” id., at 317, and when he joined to form a majority a few months later in Penry v. Lynaugh, 490 U.S. 302 (1989), the Teague plurality view became established law.

So there are practices that we may consider to be “unfair” in some other sense even though they are unlikely to result in the conviction of an innocent person. In the Teague case, the claim was that the prosecution had used peremptory challenges in a discriminatory manner. If true, that would be repugnant, but it does not mean that the jury that actually tried Teague was biased or that his trial was unfair. (Teague was caught at the scene following a robbery and attempted murder, and his defense was only a shaky mental one.)

The Court had already decided in Allen v. Hardy, 478 U.S. 255 (1986) that Batson would not be retroactive on collateral review under the pre-Teague test, and the Teague Court applied Allen to deny Teague’s Equal Protection claim without indicating it needed to be reconsidered under the Harlan view, even though Teague’s lawyer had argued exactly that.

So the two prongs of the Teague test limit each other. The accuracy prong limits the fundamentalness prong by excluding new rules that are adopted to further some other value besides the accuracy of trial results. The fundamentalness prong limits the accuracy prong by excluding rules that fine-tune the trial process and are considered to improve its accuracy but which we cannot say are essential to a fair trial.

p. 52, ln. 18:

JUSTICE GORSUCH:  [W]hat relevance does [the number of judgments that would be overturned] have anyway? As I understand your argument is that, okay, it’s 1600, but it’s really difficult. Wouldn’t we expect it to be difficult if, in fact, it were a watershed rule? If this really were a significant change and an important one, wouldn’t we expect there to be some burden for the state, and — and where does Teague tell us that that matters?

 *      *      *

JUSTICE GORSUCH: I think you’d agree that if it is watershed, it’s retroactive regardless of the burdens on the state. And, in fact, we’d expect some burdens on the state in such a case, right?

Right. Rule-by-rule assessment of the burden of reversals in deciding whether to apply a new rule retroactively was an element of the Linkletter–Stovall regime that Teague discarded. Teague considers the burden of reversals in establishing its general rule that new procedural rules are not retroactive to overturn final convictions. The exceptions for substantive rules and for essential accuracy rules represent a judgment that in these two categories the correction of wrongful convictions is worth the burden.

But for procedural rules that are not essential to a fair trial, Teague makes a judgment that for these rules as a category, not rule-by-rule, the number of wrongful convictions that would be overturned by retroactive application is so small as to not be worth the mass overturning of convictions of actually guilty criminals that would result. Again, Teague himself is the example. He did it. He was caught red-handed. He should not be able to weasel out of a conviction that is accurate and was obtained by a procedure that was legal at the time, however distasteful we might find it today.

Justice should not be a game where criminals can say “gotcha” when the rules change later and force the state to either retry them on very stale evidence, if possible, or let them walk no matter how grave their crimes. A guilty criminal tried under the laws in effect at the time of the trial and appeal should finish the sentence.

Empirical Claims and Reliability of Verdicts

Are less-than-unanimous verdicts really far less reliable than unanimous ones? What is the basis for such a claim?

p. 7, ln. 2:

CHIEF JUSTICE ROBERTS: I think, particularly given your answer on DeStefano, that —that you have something of a burden of establishing that the unanimous jury is —is necessary to avoid an impermissibly large risk of an inaccurate conviction.

What —what is your best empirical evidence for that?

MR. BELANGER: Well, I have two. First is we have amici have provided some statistics on the actual exonerations coming out of Louisiana. Of the 65 or so cases that they’ve identified, half of those cases were eligible for a nonunanimous verdict, and from that population of half, half of those, or one quarter of the 65, were actual exonerations of nonunanimous jury verdicts.

[The second was a strange and irrelevant reference to the completely different rule on appointed counsel for indigent felony defendants.]

That’s it? That is the best empirical evidence? That is no evidence.

First, the amicus brief referred to, that of the Innocence Project, is based on the so-called National Registry of Exonerations (NRE). Despite the official-sounding name, the NRE is not any kind of official or authoritative source. It is an academic project. It is an extension of the same efforts at distortion that Justice Scalia blasted in his concurring opinion in Kansas v. Marsh, 548 U.S. 163 (2006). See also, Ward Campbell, Exoneration Inflation: Justice Scalia’s Concurrence in Kansas v. Marsh, IACJ Journal 49 (Summer 2008). As with the DPIC’s notorious “innocence list,” one does not have to be innocent, or exonerated, to be included in the list.

It is not rare in the criminal justice system that a conviction is overturned on direct or collateral review for a procedural error of some sort, often years or even decades later, and the evidence remaining and admissible at that point is insufficient to carry the heavy burden of “proof beyond a reasonable doubt.” A dismissal of charges by the prosecutor or even an acquittal by a jury is not, by any stretch, proof that the defendant actually did not commit the crime.

One prime example is Timothy Hennis. His conviction of murder in North Carolina state court was overturned on appeal. On retrial in state court, the jury found enough doubt to acquit him. Hennis was hailed as an “exoneree,” wrongly convicted by the system, and placed on the “innocence list.” Years later, after DNA technology improved, Hennis’s story was conclusively proved false by DNA. The military recalled him to active duty and court-martialed him, and he is on military death row.

Yet the NRE accepts dismissal of charges as “exoneration” with only one qualification. It says the dismissal (or acquittal) must be the result “at least in part” of evidence of innocence. How large a part? It does not say. How do they determine “result”? They do not say. Does the evidence have to be an explicit basis of the outcome? No, they expressly say it does not.

So it is entirely possible that the NRE, like the “innocence list,” consists to a large extent of actually guilty people who wrongly got off with less than their full sentences. We really don’t know. This is why appellate courts should not accept empirical claims based on unadjudicated academic studies and projects, as discussed in this post. The source of the claim is heavily ideologically biased toward the defense side of criminal law. There has been no cross-check. There has been no cross-examination. This is hearsay of the rankest sort.

Surprisingly, neither the state nor the federal government challenged the NRE at the argument. But even if one accepts their numbers as correct, do they make a case that the unanimity rule is essential to accurate verdicts?

p. 18, ln. 14:

JUSTICE KAGAN: … So I want to focus on the watershed inquiry, and in that inquiry, we’ve talked a lot about accuracy. And I think somebody previously asked you about your empirical evidence, and I’ll just give you sort of my sense that the empirics here are sparse, maybe surprisingly sparse, as to how this unanimity requirement works with respect to what I take to be the ordinary meaning of accuracy, which is simply a reduction in the error rate in trials.

They are sparse indeed, although unlike Justice Kagan I do not find it surprising in the least.

In defense counsel’s answer to the Chief Justice, quoted above, he notes that 65 Louisiana cases overall were entered in the NRE as supposedly “exonerated.” Half of those cases were from categories where Louisiana law did not allow a non-unanimous verdict. Half of the other half, or one-quarter of the total, were convictions by non-unanimous verdicts. What does that prove? Not a thing.

How many of the 15 defendants convicted by non-unanimous juries whose convictions were later overturned would not have been convicted if Louisiana required unanimous juries? These numbers shed no light on that at all. We know anecdotally from prosecutors in states that do require unanimity that defendants whose juries hang at 11-1 or 10-2 for guilt are almost always convicted by a second trial or a plea bargain, and very few walk.

Is the one-quarter of “exonerated” cases from nonunanimous verdicts disproportionate to the fraction of verdicts that are not unanimous. The portion of the Innocence Project Brief relied on by the defense for its numbers does not say. If there is a disparity, is it statistically significant? Is 15 a sufficient sample size to say anything at all empirically? Crickets. Yes, Justice Kagan, very sparse.

How about a review of the literature? The defense and supporting amici cite studies showing an improved quality of deliberation when unanimity is required. That is a good policy argument for unanimity. It is not remotely close to showing the very strong connection between the rule and accuracy that Teague requires for habeas retroactivity.

For the actual question of accuracy, amici Law Professors and Social Scientists (p. 8) cite a law review article which cites one study. See Taylor-Thompson, Empty Votes in Jury Deliberations, 113 Harv. L. Rev. 1261, 1272, nn. 68-69 (2000).

On the other side, amicus State of Oregon cites an article which surveys the literature and finds that most studies show little effect for a unanimity rule. See Leib, Supermajoritarianism and the American Criminal Jury, 33 Hastings Const. L.Q. 141, 144, n. 10 (2006). So not only is the empirical basis sparse, what there is gives us mixed signals.

p. 32, ln. 23:

JUSTICE BARRETT: … It seems to me that it would be speculation … to think that the case would have come out differently with a unanimous jury.

Indeed. Rank speculation.

The Second Teague Exception and Original Understanding

p. 43, ln. 2:

JUSTICE ALITO: [I]f the Gideon rule, which was not the original meaning of the Sixth Amendment, is a watershed rule, how could we find that a —the —the unanimity rule, which the Court held in Ramos was dictated by the original meaning of the Sixth Amendment, does not rise to the level of a waterhead —A watershed rule?

Because whether a rule is within the original understanding of the Bill of Rights has nothing to do with whether it qualifies for the Teague exception. Schriro v. Summerlin, 542 U.S. 348, 355 (2004) put that notion to rest. “The question here is not, however, whether the Framers believed that juries are more accurate factfinders than judges ….” It is the question as framed by Teague and described above. Summerlin involved the retroactivity of a rule regarding whether a defendant was entitled to a jury at all for a finding that was effectively equivalent to convicting him of a higher degree of offense. The Apprendi line, of which this is a part, is all about original understanding. Yet Justice Scalia, one of the Court’s staunchest originalists, dispatched the retroactivity claim in his opinion for the Court.

Whether a rule is within the original understanding is now a central theme of the Court’s inquiry as to whether it should be adopted. Whether a final conviction under a contrary rule that was deemed constitutional at the time should be overturned on habeas corpus is a different question. Congress was well aware of the Teague rule when it overhauled habeas corpus in 1996 and chose not to change it.

Are there any qualifying rules remaining to be made?

Almost certainly not, and this Court has said as much more than once. See, e.g., Summerlin, 542 U.S., at 352.

p. 13, ln. 19:

JUSTICE ALITO: This whole quest for watershed rules is rather strange. We keep saying there were some in the past that were discovered, but it’s not clear that there are any new —any new ones that haven’t yet been discovered, but, you know, maybe, just maybe there might be a watershed rule out there that hasn’t been discovered.

It — I mean, it sort of reminds me of something you see on some TV shows about the —the quest for an animal that was thought to have become extinct, like the Tasmanian tiger, which was thought to have died out in a zoo in 1936, but every once in a while, deep in the forests of Tasmania, somebody sees a footprint in the mud or a howl in the night or some fleeting thing running by, and they say, a-ha, there still is one that exists.

It is strange. The Teague plurality was unwilling to shut the door completely in 1989 but noted that it is “unlikely that many such components of basic due process have yet to emerge.” 489 U.S., at 313. The doubt grew larger as time went on, and “many” became “any,” as in Summerlin, supra, quoting Tyler v. Cain, 533 U.S. 656, 667, n. 7 (2001). It may well be time (if it wasn’t time two decades ago) to declare the second exception officially extinct and end the expense and delay of hunting for it.

p. 24, ln. 19:

JUSTICE GORSUCH: … With respect to the watershed route, your alternative route, you —you —you’ve gotten different variations of the question, but I —I guess the way I’d —I’d put it is Teague holds out this promise that there’s going to be some watershed rule in the hands of Gideon as an example, which predates Teague, of course.

But then, ever since, we haven’t —we haven’t found a single one. Is —is this a false promise? If it is, should we just admit it’s a false promise? If it isn’t a false promise, then what counts, what principle counts if DeStoff — DeStefano doesn’t count, Ring doesn’t count, Batson doesn’t count, Crawford doesn’t count? Are we —are we just —who are we kidding and —and what should we do about it?

I beg your pardon; Teague never promised an exception garden. As noted above, Teague was skeptical from the beginning about the discovery of new rules so fundamental as to qualify.

All the precedents noted “count.” They applied in cases that were pending on appeal when they were decided, and they have controlled all trials conducted since. They merely did not overturn judgments of final cases tried under rules deemed correct at the time.

What should the Supreme Court do about it? Again, it might do what CJLF has been urging for many years and what came close to doing in Tyler and Summerlin — declare the second exception officially dead.

What is the significance of pre-Teague jury trial retroactivity precedents?

Several Justices asked questions about precedents before Teague regarding the right to jury trial that were not applied retroactively under the old test. I will quote them first and then give one answer for all.

p. 5, ln. 7:

CHIEF JUSTICE ROBERTS: Thank you, counsel. I —I think your biggest hurdle is the Court’s decision in DeStefano, where we held that the jury trial right itself should not be applied retroactively. What —what we’re talking about here is a subordinate right to a unanimous verdict, a lesser included right. How do —how do you get around DeStefano?

p. 20, ln. 15:

JUSTICE KAGAN: Could I ask you about your argument which hasn’t come up so far today but featured prominently in your briefs about the racial aspect of —of —of this rule, picking up on Justice Gorsuch’s opinion and Justice Kavanaugh’s opinion about how this rule started as a — the nonunanimity rule started as a racially discriminatory one.

How does that play into the Teague analysis and how can it play given that we’ve held Batson non—nonretroactive?

[Batson prohibited use of peremptory challenges in a racially discriminatory manner.]

p. 26, ln. 5:

JUSTICE KAVANAUGH: Thank you, Chief Justice.

And good morning, counsel. I had been concerned that your approach would require us to chart a new path on retroactivity. As Justice Thomas and Justice Alito pointed out, we have a long line of cases, and you were just discussing with Justice Gorsuch post-Teague cases, such as Whorton about the Crawford rule and — and many others where we have declined to apply a new rule retroactively on collateral.

I’m also, though, concerned about the — some of the pre-Teague cases which I think are on point here. The Chief Justice brought up DeStefano. You’ve — you’ve equated Ramos to Gideon. The dissenters in DeStefano equated the jury trial right itself to Gideon, Justice Douglas and Justice Black, in their dissents, and I just want to give you an opportunity. The — the — the jury trial right not applying retroactively but the unanimous jury right applying retroactively on collateral review seems like an asymmetry.

p. 27, ln. 24:

JUSTICE KAVANAUGH: Okay. On the Batson angle, as you know, in Ramos, I thought the Batson precedent was an important — important one in thinking about how the nonunanimous jury actually operated in practice, and I think Batson is a — a landmark opinion and one of the more important opinions in this Court’s history in terms of ensuring that trials occur without racial discrimination.

Yet, in Allen v. Hardy, we did not apply Batson retroactively. I know Justice Kagan referenced this with you. And that’s I guess another asymmetry I’m concerned about here in — in this case. And your distinction of — of Allen v. Hardy would be?

Under the pre-Teague approach, the first step in deciding retroactivity was to assess the purpose of the new rule, and in particular “[t]he extent to which [the prior] condemned practice infects the integrity of the truth-determining process at trial [as] a ‘question of probabilities.’ ” Stovall v. Denno, 388 U.S. 293, 298 (1967). This hurdle was considerably lower than the hurdle of the second Teague exception, so if a rule failed to clear it, that rule would necessarily not have been retroactive on habeas corpus under the later, more stringent Teague rule.

So all of the precedents holding extensions of jury trial rights (or, in Batson, a related equal protection right) not retroactive under Stovall can be considered precedents under Teague as well.

DeStefano held that a much more important extension of the Sixth Amendment—the right to jury trial itself—was not retroactive. Allen held that a rule with much stronger ties to protection from racial discrimination was not retroactive. In both cases the rule was insufficiently related to accuracy to require retroactivity. They preclude retroactivity for Ramos.

p. 42, ln. 5:

JUSTICE BREYER: Well, and most of what my totally separate question is, what do you do about Brown versus Louisiana? It says that it’s retroactive because you have —a six-man — six-person jury has to be unanimous. It can’t be 5 to 1. So, if a six-person — person jury can’t be 5 to 1 — a 12-person can’t be 10 to 2, and if the first was fundamental, why isn’t the second?

Brown v. Louisiana, 447 U.S. 323 (1980) was decided in the period when some Justices had accepted the Harlan view of retroactivity but some had not. Brown was a direct review case, not habeas corpus. A plurality of the Court believed that the underlying rule should be retroactive to all cases, but the Justices casting the deciding votes did so only because it was on direct review, anticipating the rule we now know as Griffith v. Kentucky. Brown is therefore not a precedent that the rule in question would be retroactive on habeas corpus. That question was never decided by the Supreme Court.

Does the rule of Ramos meet the requirements of the second Teague exception?

No. The question is not even close. The Court could not honestly make Ramos retroactive on habeas corpus without overruling Teague or at least making a major modification of it.

No case has been made for overruling Teague. It is a landmark precedent that has been consistently applied by the Supreme Court for 32 years now. It has not proved unworkable, but quite the contrary. If we recognize that the second exception is a historical footnote, not something that will ever be applied in the future, the rule is straightforward and easy to apply in most cases. New substantive rules are retroactive across the board, while new procedural rules are retroactive only to cases pending on direct review when the rule is made.

No one in this case has offered a coherent rule that would replace Teague. In Teague itself, the Court adopted a proposal that had been percolating for 20 years. There is nothing comparable here. Justice Kavanaugh was correct at page 26 that the defense’s approach would require the Court to “chart a new path on retroactivity.” That is not a step to be taken precipitously. Teague should be applied on its terms to this case, and it requires affirmance of the judgment.