When the Supreme Court announces a "new rule" of constitutional law, does that mean the right it articulates did not exist in the past?

Yesterday, we were talking about Danforth v. Minnesota, and now the transcript of the oral argument is available (PDF). Let's dig in.

This is a case about whether the state courts must follow the doctrine that has in the past applied to federal courts that are considering whether to grant habeas corpus relief to persons who are in custody after conviction in state court. The problem is that the conviction followed a state court proceeding that complied with the federal constitutional law that the Supreme Court had articulated at the time. The Supreme Court said, in Teague v. Lane, that the federal court, on habeas, should not require the state court to redo its work according to a higher standard that was only announced later. The question in Danforth is whether the state courts can follow their own procedure and require new trials that satisfy the higher standard. Danforth was convicted of sexually abusing a child whose testimony was presented on videotape, but the Supreme Court, after his conviction became final, determined that the 6th Amendment requires live testimony. Federal courts, following Teague, won't order the new trial on habeas, but why shouldn't the state courts have the autonomy to establish their own law about whether there will be a retrial in this situation?

There are two significant matters here that ought to appeal to a conservative Justice.

First, originalism. If you are an originalist, there should be no coherent idea that rights are "new." Rights are what they are. The Court may have newly discovered those rights and failed to notice them in the past. But a case announcing a "new rule of constitutional law" should not mean that the right came into being at that point. If you think that, you believe the Constitution grows and evolves. That is the very idea that Justice Scalia mocks whenever he gives a speech, but here's the attitude he took at oral argument:

Now, you can argue, and there are many originalists who would agree with you, that there shouldn't be such a thing as a new rule, but once you've -- once you've agreed that there can be new rules, if this Court says this is a new rule, we acknowledge it wasn't the rule before, but it's new, it will not have retroactive effect, it seems to me that the State would be contradicting that ruling by saying oh, in our view the law used to be exactly what you say it newly is.

Once you've -- once you've agreed ... Why is he agreeing?! Every fiber of his being should be screaming no. A "new rule" isn't a new right. It's a newly discovered right. Is he playing dumb? Why? This should fuel the critics who say he's just hostile to the rights of the criminally accused.

Justice Stevens calls him on it:

JUSTICE STEVENS: But your basic position is that we should not be making new law. We should be -- we might have misinterpreted the law over the years, but, basically, this Court has no power to change the text of the Constitution or its meaning. I guess Justice Scalia's position is we have all that power in the world.

(Laughter.)

JUSTICE SCALIA: My position is we have asserted all that power in the world.

(Laughter.)

Isn't it nice that everyone had a laugh? I can see laughing if you enjoy seeing Scalia openly displaying hypocrisy and don't care that a man is in prison who might have gone free if he'd had the chance to cross-examine the witness against him. I don't think it's funny at all.

Second, federalism. A conservative justice should care about the autonomous operation of the state court system, subject to the demands of federal law. Teague expressed the deference federal judges owe to the state courts who performed their obligation to enforce federal law well enough and therefore deserve not to have to redo their work according to constitutional law standards they didn't know existed.

Perhaps Teague should be extended to prevent the state courts from offering a broader remedy for the violation of a newly discovered right, but why would that be? Why can't the state courts devise their own remedial approach? A conservative justice should see the need to articulate a reason for turning what was deference to state courts into a limitation on state courts. Yet Chief Justice Roberts seemed eager to conflate remedies and rights. He asserted that the nonretroactivity of a right is part of the definition of the right, and then said that retroactivity "at least" a matter of federal common law, "and doesn't Federal common law preempt State common law?"

Now, that is a question, not an assertion, so perhaps he realizes — I certainly hope he realizes — that there would still be a question of the scope of that federal common law.

Teague applied to federal courts on habeas deciding whether to upset a conviction that had become final. If you want to extend the principle to state courts and deny them the power to fashion their own approach to providing remedies for newly discovered federal constitutional rights, you need to do some common law reasoning and explain why — including why it's good federalism.

UPDATE: Orin Kerr comments on this post:

In response to Ann's second post, I think I disagree with her about the originalist point. There is no inconsistency between being an originalist as a normative matter but a legal realist when asked to explain how the Court actually works. It seems to me that an originalist could look at Crawford and say that the right should have been recognized but wasn't, and that for various reasons habeas relief should be premised on compliance with the law as it was recognized at the time rather than the law as it should have been understood to be.

I don't think you need to disagree with me. You can say that the right was always there. It existed at the time of the trial, unbeknowst to the state court, and a federal court should not not enforce it by upsetting a decision that became final before the right was discovered and proclaimed. You don't have to abandon originalism to accept Teague.

That seems to be Scalia's position. I also think the criticism falls a bit flat with Justice Scalia in particular, as he is a partial, once-in-a-while originalist rather than a consistent defender of the method.

I don't think he wants to sign on to the notion of a living constitution.

On the other hand, I agree with Ann about the federalism point.

Thanks!