"Did Justice Stevens Pull a Fast One? The Hidden Logic of a Recent Retroactivity Case in the Supreme Court," is the title of Columbia law prof Michael Dorf.
Last week, in Danforth v. Minnesota, the U.S. Supreme Court ruled that a state court was free to give greater protection to defendants' rights than the Supreme Court itself requires. Stated that way, the decision is hardly news. In our system of federalism, federal constitutional law is not a ceiling, but a floor. It sets out the minimum protections to which people are entitled. If states--through their constitutions or otherwise--choose to add protection, that is their prerogative.
Yet Danforth was no ordinary application of the floor-but-not-a-ceiling principle, because the question in the case was not whether Minnesota could interpret its own state law more broadly than federal law. Everyone accepts that it (like every other state) can. The question in Danforth was whether Minnesota could over-protect federal law. Perhaps surprisingly, the Supreme Court said yes.
And:
For non-specialists--indeed, even for specialists--it is difficult to see why the result in the Danforth case should have turned on the semantic question of whether we characterize retroactivity as a matter of remedy or a matter of choice of law (old or new). Surely, one thinks, there must be something else driving the decision. But what?
Ideology is not a very good candidate. Although the Court's most liberal Justices--Stevens, Souter, Ginsburg, and Breyer--were all in the majority, the case split the conservatives: Justices Scalia, Thomas and Alito joined the majority, while Chief Justice Roberts and Justice Kennedy dissented. Nor is that result entirely surprising as an ideological matter, because the case pitted two conservative principles against each other: On one hand, allowing the state courts to give greater retroactive effect to Supreme Court decisions than the Justices themselves requires, vindicates states' rights. On the other hand, denying state courts that right vindicates the competing conservative principle of finality in criminal law.
Although general principles of conservatism cannot explain the split in Danforth, perhaps other "psychological" analyses of the Justices can shed some light on the ruling. In his majority opinion in Danforth, Justice Stevens repeatedly invoked--and quoted at length from--earlier decisions written by Justice Scalia. Moreover, the underlying principle at stake came from the Crawford opinion, which Justice Scalia authored for the Court. Nonetheless, it is hard to believe that Justice Scalia would have voted with Justice Stevens simply out of vanity or gratitude for the respect granted his prior work.
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