Font Size: 
Supreme Court Argument Report: Justices Get Metaphysical
Law.com
November 01, 2007
In a lively hour of argument Wednesday, the Supreme Court justices debated the distinction between rights and remedies, the Court's authority to promulgate new constitutional rules through its decisions, and an issue that Justice Stephen Breyer termed "metaphysical."
Throughout the argument in the case, which involves states' power to apply U.S. Supreme Court decisions to state criminal procedures using a retroactivity standard broader than the federal one, the justices frequently jumped in to respond to their colleagues' questions and comments themselves -- at one point leaving one of the arguing attorneys completely out of the mix for some time.
In Danforth v. Minnesota, the petitioner is challenging his 1999 conviction based on the high court's 2004 confrontation clause ruling Crawford v. Washington, which limited the use of out-of-court testimony in criminal trials. The Minnesota Supreme Court, applying the U.S. Supreme Court's 1989 precedent inTeague v. Lane, found that the Crawford holding establishes a new rule of federal constitutional procedure, and that the the state could not apply it under its own retroactivity principles.
The petitioner argues that Crawford provides a procedural remedy that the state can make retroactive subject to the minimum requirements set by the Court. The respondent argues that retroactivity is a substantive constitutional standard controlled by federal law.
CAN THE COURT MAKE 'NEW' LAW?
In general, the justices generally perceived as part of the Court's liberal wing -- Breyer and Justices David Souter, John Paul Stevens and Ruth Bader Ginsburg -- were not shy about lending a helping hand to the petitioner's counsel, while Justices Anthony Kennedy and Antonin Scalia often chimed in to bolster the respondent's arguments.
A hot topic of debate was whether the Supreme Court has the power to fashion new constitutional rules. Scalia appeared to feel that the Court had this authority while Stevens in particular seemed troubled by the concept, stating that "the notion that we can make up a new rule of law at will strikes me as a very dramatic departure from what I understand the rule of law to require."
Stevens characterized the position advocated by the attorney arguing for the petitioner, Assistant Minnesota State Public Defender Benjamin J. Butler, as stating the Court "should not be making new law," and that "basically, this Court has no power to change the text of the Constitution or its meaning.
"I guess Justice Scalia's position is that we have all that power in the world," Stevens said.
The spectators laughed at Stevens' comment, and were even more appreciative of Scalia's quip: "My position is we have asserted all that power in the world."
RIGHT VS. REMEDY
Roberts took issue with the distinction he felt the petitioner was drawing between a federal constitutional right as interpreted by the Court, and a remedy that state courts might have the power to grant in a more expansive way. Roberts said that the "ancient distinction between right and remedy" is one that the Court has found in "countless areas of the law" to be an "ephemeral" one.
Souter intervened on this point, suggesting that the petitioner was relying on state common law. "[Y]ou are saying that, so long as the state common law does not give less by way of remedy and relief than the federal decision requires, the state is free ... to do more," he told Butler.
"That is absolutely my point, Justice Souter," Butler said.
Roberts countered that the Court's decision in Teague is at the "very least" federal common law regarding retroactivity: "I think it is more than that. I think it is ... substantive federal constitutional law. But it's at least federal common law, and doesn't federal common law pre-empt state common law?"
Stevens' comments on the right vs. remedy issue also bolstered Butler's argument: "I know the chief justice has cast doubt on it. But I think there is a basic distinction between rights and remedies."
Ginsburg offered the view that the state court remedy is "subject to the floor ... that this Court sets. It must be retroactive to a certain extent."
LET'S GET METAPHYSICAL
Butler's closing point during his argument time sparked a spirited debate while the respondent's counsel, Patrick C. Diamond, deputy county attorney in Minneapolis, presented his case to the justices.
Butler noted that different states have appellate processes that last varying lengths of time, a fact that could compromise goals of uniformity and finality in the retroactivity context.
Souter commented on this idea, saying that the consequence would be that "the substantive rule will apply to some people who acted on date X and it will not apply to [other] people who acted on date X."
This problem "will not result in the uniform application of the [Crawford] rule. Isn't that correct?" he asked Diamond.
Scalia told Diamond: "Yes, that's correct. You have to say that's correct."
But Scalia went on to advise that Diamond could counter with the solution of providing equitable exceptions for individuals who have pending cases. "But basically, the existence of that exception does not prove that the Court was not purporting to make a substantive rule," he said.
Breyer returned at a later point to Souter's concern about varied time frames, pressing what he called "a metaphysical point" by posing the hypothetical of three defendants in three separate states whose appeals take different lengths of time.
"[M]etaphysically, if the law of Crawford was the law at the time of the first two trials, why wasn't it the law in terms of what the rights are with respect to the third person whose trial was held at precisely the same time?" Breyer asked Diamond.
Scalia had a response for Breyer, saying that, since Teague is "full of new rules" regarding retroactivity, the Court has "violated metaphysics already. Having violated it, in adopting new constitutional rules, why should it be any surprise that we also violated it in the application of such rules?"
Breyer and Scalia, along with Stevens, debated the issue back and forth with no word from Diamond for a period of time, until Roberts interrupted and got a laugh from the spectators by telling Diamond: "I think you're handling these questions very well."
Laurel Newby is a senior editor with Law.com.
