In brief, the jurisdictional difficulty here is as follows. This case is about whether the Louisiana Supreme Court correctly applied Teague v. Lane, a Supreme Court decision on retroactivity in federal habeas, in state collateral proceedings in holding that Miller v. Alabama doesn't apply retroactively. The Court has never held that Teague sets a retroactivity floor that binds the states, and has positively held it does not set a retroactivity ceiling. Meanwhile, the Louisiana Supreme Court, in a prior decision, made what it described as a completely voluntary choice to borrow Teague for its state collateral proceedings, and, following that precedent, applied Teague in proceedings below. If Teague is a habeas decision that doesn't control state-court proceedings, does a state court's voluntary application of Teague present a federal question as to whether it applied Teague correctly? The parties and the SG say yes (one of the parties, the defendant, says that even if that's wrong, Teague's exceptions do bind the states); the Court appointed an amicus to argue otherwise.
I thought Richard Bernstein, the Court-appointed amicus, had an exceptionally easy time of it at argument. Here are the questions he was asked, in between long uninterrupted remarks, including a completely uninterrupted rebuttal:
(1) a softball from Justice Ginsburg on what the adequate and independent state ground in this case was; Bernstein answered that it was the state's choice to apply Teague as state law.
(2) a question from Justice Sotomayor on whether the Court at least had jurisdiction to decide if Teague was binding on the states; Bernstein said yes, of course, but that it shouldn't be.
(3) a tentative question from Justice Kennedy on why Teague couldn't be binding, in which he acknowledged that if he were to argue it was, "I'm not quite sure what case I would have to support me."
(4) A more pointed question from Justice Kennedy on whether Bernstein was saying that the Supremacy Clause doesn't apply on collateral review.
(5) A pair of questions from Justice Sotomayor on how Bernstein distinguished Standard Oil v. Johnson, which is easily distinguished and which Bernstein distinguished well.
(6) A long series of questions from Justice Breyer on why Teague shouldn't be binding, including a hypothetical on whether a hypothetical decision that it was unconstitutional to prosecute witchcraft wouldn't have to be retroactive as a matter of due process.
(7) A question from Justice Kagan suggesting that Bernstein overstated the extent to which making Teague mandatory would in essence force the states to afford an implied judicial remedy.
After Bernstein argued it was Montgomery's turn, and in his fifteen minutes of argument his counsel, Mark Plaisance, never got to say a word about the merits of his claims. Right out of the gate Justice Ginsburg, a must-have vote for Montgomery, said she didn't think the Court had jurisdiction:
JUSTICE GINSBURG: Isn't it just like a State saying, we have a Fourth Amendment, and the Federal Constitution has a Fourth Amendment. We are going to apply our own Constitution, but in applying it, we will follow the Federal precedent? I think we would say, in that case, the case has been decided on the State constitutional ground, even though the State court, in interpreting that ground, is looking to Federal decisions.Plaisance had no real answer to this question, other than to cite Michigan v. Long and say that the state supreme court had to do more (what, exactly, wasn't clear) to avoid Supreme Court review than say that they were not bound to apply Teague and were only applying it as a matter of state law. This earned him a series of hostile questions from Justices Scalia and Alito, who appeared throughout the argument to be safe votes against jurisdiction. Chief Justice Roberts suggested that he couldn't see, after the Court's holding in Danforth that Teague was an interpretation of the habeas statute, how state courts' voluntary applications of an interpretation of a federal statute for state-law purposes could be reviewable by the Court. Justice Ginsburg suggested that if the Court found jurisdiction by constitutionalizing Teague, Montgomery would be making matters worse for similarly situated prisoners, because state courts' application of Teague would receive AEDPA deference. Justice Sotomayor asked Plaisance to assume the Court rejected his argument on Michigan v. Long and turn to whether Teague was binding on the states, but Plaisance ran out of time to say anything about that.
Michael Dreeben, the SG office's criminal procedure guru, argued next. About half of his argument was devoted to jurisidictional questions before the Chief Justice all but instructed the Court to stop asking jurisdictional questions and turn to the merits - this on page 31 of a 71-page transcript. Before that happened, the Chief asked if the Louisiana Supreme Court couldn't dump Teague on remand once the Court enlightened them as to what it meant. Dreeben acknowledged it could. Justice Breyer, who for most of the argument seemed a safe vote for jurisdiction on some ground, asked whether, if the Court accepted the SG's argument, the Court would be bogged down in state-law evidence cert petitions where state supreme courts had held they would follow the federal courts' interpretations of parallel federal rules of evidence. Dreeben said that state courts rarely tethered themselves tightly enough to the Federal Rules and interpretations thereof to generate federal jurisdiction, but acknowledged that some cases of that kind could come to the Court under the government's jurisdictional theory, which seems a rather damning concession. Justices Scalia and Alito continued to doubt jurisdiction.
Finally, Kyle Duncan argued for Louisiana. He too supported jurisdiction, and only took about a quarter of his time on it. Most of that time was spent on an attempt to rely on the quartet of cases cited in the SG's brief that I discussed in my last post, and on fending off Justices Scalia and Alito's various distinctions of those cases, some of which were anticipated in my last post and some of which I hadn't thought of. Justice Alito, for example, suggested that in those cases there was no alternate mechanism of federal review, while here there is - habeas. Justice Kagan, at one point, defended Duncan's reliance on the SG's cases, reasoning that once Louisiana chose to follow Teague, "all outcomes are dictated by Teague" in just the same way that in Ohio v. Reiner (a state-law transactional immunity case where a transactional immunity statute looked to whether a witness had a valid Fifth Amendment privilege), the outcome was dictated by the Fifth Amendment. The difference between Reiner and this case, as I explained in my last post, is that in Reiner there was a real federal question - did a witness have a Fifth Amendment privilege - whereas here there's only a phantom one - what would Teague say about retroactivity in this proceeding, if, contrary to fact (assuming Teague isn't binding on the states), Teague had something to say about it.
PREDICTION: The jurisdictional question in Montgomery is hard to call because it's really two questions: is there jurisdiction if Teague isn't binding on the states, and if not, is Teague binding on the states. It's apparent that Justices Scalia and Alito oppose any path to jurisdiction, while Justice Ginsburg expressed skepticism of both paths and is really too much of a formalist on matters of jurisdiction to buy into the first. The Chief Justice was a fairly clear skeptic of the first path, and though he did dissent in Danforth, which held that Teague does not cap retroactivity in the states, I don't think a ceiling/floor distinction of Danforth would appeal to him, as it obviously does to other Justices. I would be surprised if Justice Thomas differed from Scalia and Alito on these issues, and if that's right there's a very possible Scalia-Alito-Roberts-Ginsburg-Thomas majority against jurisdiction.
On the other side of the coin, Justices Sotomayor and Breyer would obviously like to hold that Teague's exceptions are mandatory, but wouldn't appear to have the votes. Justice Kagan accepts the SG's theory that a state-law claim that permissively incorporates non-applicable federal law presents a federal question, but seemed to be the only Justice who did, or at least the only one who clearly did. Justice Kennedy expressed some tentative curiosity about constitutionalizing Teague, and I think one could make a fair case that his priors - federalism, his famous interest in liberty - would lead him to a result where states have to apply Teague's exceptions but get AEDPA deference in doing it, rather than a result where states don't necessarily apply Teague and state prisoners get a first crack at arguing Teague on habeas. It should be noted that he, like Roberts, dissented in Danforth and may be attracted to a floor/ceiling distinction of Danforth.
My somewhat implausible bottom line, then, is that Scalia, Alito, Thomas, Roberts and Ginsburg find no jurisdiction, while Sotomayor, Breyer, and possibly Kennedy write that Teague's exceptions are mandatory, and Justice Kagan dissents separately (and possibly joins the main dissent) to say there was jurisdiction here even if Teague weren't binding on the states. If that's broadly wrong (it could easily be wrong in its particulars), it will be because Justice Ginsburg votes to make Teague binding. What I find virtually impossible, after today's argument, is that a majority will buy the SG's argument that permissively subscribed-to, non-controlling federal law in state-court decisions presents federal questions for the Court's review.
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