A fundamental principle of the rule of law (and indeed, rationality) holds that like cases should be decided alike.1×1. This principle traces back to antiquity, finding some of its earliest formulations in the works of Aristotle. See Aristotle, Nicomachean Ethics bk. V, ch. 3, 1131a10–b16, at 83–84 (Roger Crisp ed. and trans., Cambridge Univ. Press rev. ed. 2017) (c. 384 B.C.E.). The law of retro-activity — the application of new legal rules to cases begun or finalized prior to the new rules’ announcement2×2. See Richard H. Fallon Jr. & Daniel J. Meltzer, New Law, Non-retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1733–34 (1991). — is one of the few, puzzling exceptions to this principle. Last Term, the Supreme Court in Edwards v. Vannoy3×3. 141 S. Ct. 1547 (2021). held that the jury unanimity requirement decided in Ramos v. Louisiana4×4. 140 S. Ct. 1390 (2020). did not apply retroactively.5×5. Edwards, 141 S. Ct. at 1551. The Court also went a step further and held that the watershed exception of Teague v. Lane,6×6. 489 U.S. 288 (1989). allowing retroactive application of new “watershed rules of criminal procedure,”7×7. Id. at 311 (plurality opinion). Teague’s watershed exception provided for the retroactive application of new procedural rules found to “implicate the fundamental fairness” of a criminal trial and the accuracy of the trial’s determination of guilt. Id. at 312; see id. at 311–13. was completely foreclosed.8×8. Edwards, 141 S. Ct. at 1560. Given the Court’s justifications for its decision — namely, a heightened regard for preserving the finality of state court judgments9×9. See id. at 1565. — as well as the alternative versions of federal collateral review outlined in Justices Thomas’s and Gorsuch’s concurring opinions, the Court’s decision in Edwards augurs further cutbacks in the scope of federal habeas review.
In 2007, a Louisiana jury found Thedrick Edwards, a teenager and former honor roll student,10×10. Eric Williamson, Juror No. 12 Wants Her Voice Heard, Univ. of Va. Sch. of L. (Nov. 18, 2020), https://www.law.virginia.edu/news/202011/juror-no-12-wants-her-voice-heard [https://perma.cc/HB8B-4Z4P]. guilty of armed robbery, rape, and kidnapping.11×11. Edwards v. Cain, No. CV 15-305, 2018 WL 4375145, at *1 (M.D. La. Apr. 24, 2018), report and recommendation adopted, No. CV 15-00305, 2018 WL 4373644 (M.D. La. Sept. 13, 2018). However, not all jurors had voted to convict — instead, only eleven out of the twelve jurors, and on some charges only ten, had agreed on Edwards’s guilt.12×12. Edwards, 141 S. Ct. at 1553. The lone juror to find Edwards not guilty on all counts was both the only Black juror and the juror closest to Edwards’s age.13×13. See Brief of Amicus Curiae JonRe Taylor in Support of Petitioner at 1–3, 30, Edwards, 141 S. Ct. 1547 (No. 19-5807), 2020 WL 4450445, at *1–3, *30. Yet, because Louisiana state law allowed for nonunanimous jury verdicts in state criminal cases, Edwards was found guilty on all charges and sentenced to life imprisonment without parole.14×14. See Edwards, 141 S. Ct. at 1553.
Eight years later, Edwards filed a petition for federal habeas relief in the U.S. District Court for the Middle District of Louisiana.15×15. Edwards, 2018 WL 4375145, at *1. Edwards also applied for postconviction relief in Louisiana state court prior to seeking federal relief, but these petitions, too, were denied. See id. He argued that his imprisonment as a result of a nonunanimous jury verdict was a constitutional violation requiring remedy.16×16. See id. at *4–5. The district court, however, rejected Edwards’s argument, holding that his claim was foreclosed by the Supreme Court’s decision in Apodaca v. Oregon.17×17. 406 U.S. 404 (1972), overruled by Ramos v. Louisiana, 140 S. Ct. 1390 (2020); see Edwards, 2018 WL 4375145, at *5. The court also rejected Edwards’s claims alleging violations of the Confrontation Clause, his right to an impartial jury, his privilege against self-incrimination, and due process. See Edwards, 2018 WL 4375145, at *3–9. In Apodaca, Justice Powell, writing the controlling opinion,18×18. Justice Powell wrote an opinion concurring in the judgment of the plurality, and his opinion came to be viewed as the controlling opinion. See Edwards, 141 S. Ct. at 1553. held that the Constitution required a unanimous jury verdict in federal criminal trials but did not require the same in state criminal trials.19×19. See Johnson v. Louisiana, 406 U.S. 356, 373 (1972) (Powell, J., concurring). Following the district court’s decision, Edwards appealed to the Fifth Circuit, which denied a certificate of appealability in his case.20×20. Edwards v. Vannoy, No. 18-31095, 2019 WL 8643258, at *1 (5th Cir. May 20, 2019). Edwards then petitioned for a writ of certiorari in the Supreme Court.21×21. See Edwards v. Vannoy, 140 S. Ct. 2737, 2737–38 (2020) (granting cert).
While Edwards’s petition for certiorari was pending, the Supreme Court decided Ramos v. Louisiana.22×22. See Edwards, 141 S. Ct. at 1553–54 (detailing procedural history). With Ramos, Edwards’s challenge was transformed.23×23. This is meant literally. The question for which the Court granted cert and the one ultimately decided by the Court was not a question that Edwards had raised before the lower court or in his petition for a writ of certiorari to the Court. See Brief of the Roderick & Solange MacArthur Justice Center and Phillips Black, Inc. as Amici Curiae in Support of Neither Party at 5, Edwards, 141 S. Ct. 1547 (No. 19-5807), 2020 WL 4450438, at *5. In Ramos, the Court overruled Apodaca and held that the Fourteenth Amendment incorporated an individual’s Sixth Amendment right to a unanimous jury verdict against the states.24×24. See Ramos v. Louisiana, 140 S. Ct. 1390, 1397, 1410 (2020). State criminal trials, like federal criminal trials, now required a unanimous jury verdict for conviction.25×25. Justice Kavanaugh, concurring with the Court’s opinion, noted one of the motivations of the nonunanimous jury rule was to diminish the influence of Black jurors on the outcome of jury proceedings. Id. at 1417–18 (Kavanaugh, J., concurring in part). This point was later cited by Justice Kagan in her dissent in Edwards as a reason in favor of viewing the Court’s decision in Ramos as a “watershed exception” and worthy of retroactive application. Edwards, 141 S. Ct. at 1575 (Kagan, J., dissenting). Edwards’s suit thus posed a follow-on question: whether the rights granted to criminal defendants in Ramos applied retroactively to final convictions of state prisoners now on federal collateral review.26×26. Edwards, 140 S. Ct. at 2738 (limiting grant of cert to “[w]hether this Court’s decision in Ramos v. Louisiana applies retroactively to case on federal collateral review” (citation omitted)).
The Supreme Court held that they did not.27×27. Edwards, 141 S. Ct. at 1551. The Court’s decision in Teague had inaugurated a general rule against retroactivity (though with two important exceptions).28×28. See Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion). Teague established an exception for the retroactive application of “watershed rules of criminal procedure.” Id. at 311. Teague also announced an exception for the retroactive application of new substantive rules. See id. Adopting Teague’s reasoning, Justice Kavanaugh29×29. Justice Kavanaugh was joined by Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Barrett. wrote: “[A]pplying ‘constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.’”30×30. Edwards, 141 S. Ct. at 1554 (quoting Teague, 489 U.S. at 309 (plurality opinion)). He also zeroed in on the potential costs of Ramos’s retroactive application, pointing to retrial costs, public safety risks, and victim retraumatization.31×31. See id. at 1554–55.
Under the retroactivity framework set forward by the Court’s previous decisions, Justice Kavanaugh addressed the retroactivity of Ramos in two steps: First, did Ramos establish a new rule of criminal procedure or apply a rule that followed from settled precedent?32×32. Id. at 1555. Second, if Ramos did establish a new rule of criminal procedure, did it qualify as a watershed exception to the general rule that new rules of criminal procedure do not apply retroactively on collateral review?33×33. Id. Justice Kavanaugh first concluded that the Court’s decision in Ramos introduced a new rule of criminal procedure, rather than followed from settled precedent.34×34. Id. The Court devoted relatively little space to this point,35×35. See id. at 1555–56. as the Ramos Court itself had acknowledged that it was overruling its precedent.36×36. Id. at 1556 (“In short, even in Ramos itself, the Court indicated that the decision was not dictated by precedent or apparent to all reasonable jurists.”). The Court has often hedged on what the correct standard for determining a “new” rule of criminal procedure is. See Teague v. Lane, 489 U.S. 288, 301 (1989) (plurality opinion) (“It is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes.”). Compare id. at 301 (noting that a new rule is one that is “not dictated by precedent”), with Lambrix v. Singletary, 520 U.S. 518, 528 (1997) (noting that a new rule is one that is not “apparent to all reasonable jurists”). Some scholars have attributed this vacillation to the Court’s general hesitancy to be seen as a law-making, rather than law-clarifying, institution. See Fallon & Meltzer, supra note 2, at 1758–63. In so doing, Justice Kavanaugh rejected Edwards’s argument that the Ramos rule was a settled rule because it followed directly from the original meaning of the Sixth Amendment.37×37. See Edwards, 141 S. Ct. at 1556.
Justice Kavanaugh then asked if the Ramos rule was a “watershed rule” that applied retroactively.38×38. Id. Justice Kavanaugh characterized Teague’s watershed exception as “extremely narrow” and applicable only when the new rule disturbs the Court’s bedrock view of fairness.39×39. Id. at 1557 (quoting Wharton v. Bockting, 549 U.S. 406, 417 (2007)). Justice Kavanaugh then noted that since Teague, not a single new procedural rule had been found to fall within the exception’s scope, including those announced in Mapp v. Ohio,40×40. 367 U.S. 643 (1961). Batson v. Kentucky,41×41. 476 U.S. 79 (1986). and Miranda v. Arizona.42×42. 384 U.S. 436 (1966); see Edwards, 141 S. Ct. at 1557–59. Comparing Ramos to the Court’s other criminal procedure cases, Justice Kavanaugh concluded that Ramos failed to meet Teague’s high standard.43×43. Edwards, 141 S. Ct. at 1559. However, rather than stop at the rule of Ramos, the majority’s opinion went a step further and declared the watershed exception under Teague completely foreclosed. In short, “new procedural rules do not apply retroactively on federal collateral review.”44×44. Id. at 1562. Justice Kavanaugh stated that it would be unfair to continue encouraging hope of retroactive application of new procedural rules when such hope consistently failed to materialize in practice.45×45. See id. at 1560–61. He also discounted any reliance interests in the existence of the exception.46×46. Id. at 1560. The majority opinion concluded with “four responses to the dissent,” id., arguing that the Court’s decision to overrule Teague was faithful to Ramos, did not result from ulterior motives, and had no impact on post-Teague cases, see id. at 1560–61. Finally, the majority argued that, even if its decision foreclosed some postconviction relief claims, “criminal defendants as a group [were] better off” after Ramos and Edwards taken together. Id. at 1562.
Justice Thomas and Justice Gorsuch concurred with the Court’s opinion.47×47. Justices Thomas and Gorsuch also joined in each other’s concurrences. Justice Thomas argued that the Court could also have resolved Edwards through the text of the Antiterrorism and Effective Death Penalty Act of 199648×48. Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of the U.S. Code). (AEDPA), the prevailing statute governing federal habeas corpus.49×49. See Edwards, 141 S. Ct at 1562 (Thomas, J., concurring). Because AEDPA requires federal courts to allow postconviction relief to state prisoners only in cases decided incorrectly based on the evidence or contrary to established federal law, and Edwards’s case was decided consistent with federal law at the time of his conviction, AEDPA barred any prospect of federal habeas relief.50×50. See id.
Justice Gorsuch reasoned that the Teague retroactivity test posed a question the Court “ha[d] no business asking,”51×51. Id. at 1566 (Gorsuch, J., concurring). finding that retroactive application of decisions through habeas relief would not have squared with the writ’s meaning for much of its history.52×52. Id. at 1568. Justice Gorsuch also noted his support for the “traditional rule” of federal habeas review: “A final judgment, after completion of trial and the exhaustion of any direct appellate review, was res judicata, and the sole exception was a lack of jurisdiction.”53×53. Id. at 1569 (emphasis omitted) (citing Brown v. Allen, 344 U.S. 443, 543–44 (1953) (Jackson, J., concurring in the result)). Thus, the Court had strayed from the traditional form of the “Great Writ” in allowing any room for retroactivity at all; Edwards was a much-needed course correction.54×54. Id. at 1567, see id. at 1573. In a footnote, Justice Gorsuch also signaled an inclination to reconsider the justification for Teague’s second exception, allowing for retroactive application of novel “substantive rules” as well.55×55. See id. at 1571 n.6.
Justice Kagan dissented.56×56. Justices Breyer and Sotomayor joined Justice Kagan’s dissent. Justice Kagan objected to the majority’s reasoning that Ramos was not a watershed rule, arguing that unlike the other cases cited by the Court, the Ramos rule related directly to the fundamental fairness of a criminal trial.57×57. See Edwards, 141 S. Ct. at 1574–76 (Kagan, J., dissenting). Justice Kagan also noted two instances where the Court had applied “rules that are similarly integral to jury verdicts” retroactively, id. at 1576, and highlighted that Ramos was strongly based on rectifying past racial injustices, and thus should not apply selectively, see id. at 1577–78. Justice Kagan also pointed to the importance of Ramos’s overruling of Apodaca as a marker of Ramos’s status as watershed.58×58. Id. at 1575. Unlike the Court’s decisions that “announce a new rule,” Ramos required the Court to overrule precedent, an extreme step that only a truly monumental rule of criminal procedure would require.59×59. Id. Justice Kagan then took aim at the majority’s decision to decide a question not posed by the case nor presented squarely by the parties’ briefing — namely, the validity of Teague’s watershed exception itself.60×60. Id. at 1580–81. Justice Kagan characterized the Court’s decision to overrule the Teague watershed exception entirely as one meant to avoid Ramos’s retroactivity; all else was pretense.61×61. See id. at 1581. The majority had doubly erred: first, by ruling on a question not presented by the parties; and second, by offering only “the sketchiest of reasons” for doing so.62×62. Id.
The overruling of the Teague watershed exception, although perhaps unexpected, effected no real change in the functioning of federal habeas corpus relief. However, the majority’s justification for overruling Teague, particularly its reliance on the need to preserve the finality of state court judgments,63×63. See id. at 1554 (majority opinion). signals a marked shift in the Court’s approach to the scope of federal habeas review and a break from the conceptual approach of the Teague Court. Such a break portends the reorganization of the federal habeas regime, including the potential overruling of Teague’s other exception.
Teague v. Lane coalesced the Court’s modern approach to retroactivity.64×64. See Teague v. Lane, 489 U.S. 288, 300 (1989) (plurality opinion); see also John Blume & William Pratt, Understanding Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 325, 325–26 (1990–1991). Prior to Teague, the Court had taken a scattershot approach to retroactivity,65×65. The primary framework prior to Teague was enunciated in Linkletter v. Walker, 381 U.S. 618 (1965), which held that the exclusionary rule of Mapp v. Ohio did not apply retroactively. Id. at 619–20. Linkletter rejected a general constitutional rule for retroactivity and introduced instead a case-by-case analysis. See id. at 627–29. This led to considerable uncertainty as to both the retroactivity of the rule itself as well as when the question of retroactivity was appropriately raised — whether alongside consideration of the rule itself or as a separate question to be considered by the Court. See Teague, 489 U.S. at 302–03 (plurality opinion). holding some rules retroactive only for the named petitioner while granting blanket retroactivity for others.66×66. Compare, e.g., Jackson v. Denno, 378 U.S. 368, 377 (1964) (granting retroactivity only to named petitioner), with McNerlin v. Denno, 378 U.S. 575, 575 (1964) (per curiam) (granting retroactivity to all with a final judgment). The Teague Court recognized the downside of this approach. See Teague, 489 U.S. at 300 (plurality opinion) (“These two lines of cases do not have a unifying theme, and we think it is time to clarify how the question of retroactivity should be resolved for cases on collateral review.”). Teague moved the Court away from this unpredictable and uneven approach, instead laying out a clear framework for the Court’s approach to retroactivity: a general bar against retroactivity with an exception for watershed procedural rules and another for rules immunizing “primary activity.”67×67. Teague, 489 U.S. at 311.
Conceptually, Teague also clarified the concerns relevant to the scope of federal habeas review. Teague’s general bar against retroactivity recognized the importance of finality in preserving criminal law’s deterrent effect and ensuring that states were not made to bear the unreasonable costs of continually defending criminal convictions from federal vacatur.68×68. See id. at 309–10. Teague’s exceptions, however, acknowledged that finality was not the only relevant consideration in need of attention — rather, fairness and protection from wrongful conviction also played important, if narrow, roles.69×69. See id. at 312; see also Susan Bandes, Taking Justice to Its Logical Extreme: A Comment on Teague v. Lane, 66 S. Cal. L. Rev. 2453, 2454–59 (1993) (describing the values embodied in Teague’s approach to federal habeas). Later decisions by the Court emphasized the balance between these considerations struck by the federal habeas regime.70×70. See, e.g., McCleskey v. Zant, 499 U.S. 467, 492–93 (1991).
In foreclosing Teague’s watershed exception entirely, the Edwards Court further skewed the federal habeas regime in favor of finality. Practically, the Court’s decision moved it closer to an absolute rule against retroactivity, by denying the possibility that any new rule of criminal procedure could merit retroactive application.71×71. See Edwards, 141 S. Ct. at 1562. Conceptually, too, Edwards demonstrated the Court’s increased solicitude for the virtues of finality. Although the majority opinion acknowledged the stare decisis arguments in favor of preserving Teague’s watershed exception,72×72. See id. at 1561. it failed to address any of the underlying fairness or accuracy concerns that the Teague Court cited as the the watershed exception’s motivation.73×73. See id. at 1578 (Kagan, J., dissenting). Instead, the Edwards Court focused only on the costs of disrupting final judgments74×74. See id. at 1554–55 (majority opinion). and on the chimerical nature of Teague’s watershed exception in application.75×75. See id. at 1560.
Prizing finality absent due consideration for the other values embodied by federal collateral review has its drawbacks.76×76. But see Sandra Day O’Connor, Habeas Corpus and Judicial Federalism: Some Thoughts on Finality, Comity and Error Correction, 1992 Pub. Int. L. Rev. 3, 9 (positing an increased role for finality in the Court’s approach to the scope of federal habeas review post-Teague). To start, such an approach disregards two concerns the Teague Court saw as important enough to merit blackletter recognition: the fairness of a criminal trial and judicial safeguards against wrongful conviction of the innocent.77×77. See Teague v. Lane, 489 U.S. 288, 312 (1989) (plurality opinion); see also Todd E. Pettys, Killing Roger Coleman: Habeas, Finality, and the Innocence Gap, 48 Wm. & Mary L. Rev. 2313, 2340–55 (2007) (arguing that in cases of disputed innocence, the benefits of final judgments are not achieved). Focusing too heavily on ensuring the finality of state court judgments also ignores the important role played by federal courts since Reconstruction, that of ensuring a forum for the vindication of federal rights.78×78. See Harry A. Blackmun, Section 1983 and Federal Protection of Individual Rights — Will the Statute Remain Alive or Fade Away?, 60 N.Y.U. L. Rev. 1, 3–6 (1985); see also Bandes, supra note 69, at 2458 (claiming the Teague Court “willfully blind[ed]” itself to the importance of preserving a federal forum for constitutional claims).
Though the Court’s decision in Edwards was ostensibly about one of Teague’s narrow exceptions, it also implicates the broader status of the federal habeas regime.79×79. See Jonathan R. Siegel, Habeas, History, and Hermeneutics 6–15 (George Wash. Univ. L. Sch. Pub. L. & Legal Theory, Paper No. 2021-31; George Wash. Univ. Legal Stud., Research Paper No. 2021-31), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3899955 [https://perma.cc/5KTY-ARAA]. The conceptual shift of the Edwards Court toward greater concern for securing the finality of state court judgments portends the further narrowing of the scope of federal habeas review. Worry for the finality of criminal judgments will always favor limiting the scope of federal collateral review — the very premise of such review is the reopening of otherwise final state court judgments.80×80. See Richard H. Fallon Jr. et. al, Hart and Wechsler’s The Federal Courts and the Federal System 1265 (7th ed. 2015). Thus, a Court invested primarily in the finality of judgments within the criminal justice system is one invested in narrow, rather than broad, federal collateral review.81×81. See Timothy Finley, Habeas Corpus—Retroactivity of Post-conviction Rulings: Finality at the Expense of Justice, 84 J. Crim. L. & Criminology 975, 975–76 (1994); see also Bandes, supra note 69, at 2457–59.
Most directly, the approach taken by the Edwards Court may have implications for Teague’s other exception, which allows for the retroactive application of new rules “alter[ing] ‘the range of conduct or the class of persons that the law punishes.’”82×82. Edwards, 141 S. Ct. at 1562 (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). Even though the Edwards majority itself did not dispute the propriety of Teague’s other exception,83×83. See id. at 1555 n.3. the justifications it offered in favor of overruling Teague’s watershed exception logically tee up questioning Teague’s substantive exception. Taking finality as the cardinal value governing federal courts’ involvement in the criminal justice system leaves little conceptual room between procedural and substantive developments in the law.
The finality concerns animating Teague’s general bar against retroactivity — and adopted by the Edwards Court in its decision — apply almost without modification to a novel substantive rule of criminal law. Applying a novel substantive rule retroactively would certainly overturn otherwise final convictions.84×84. See, e.g., Welch v. United States, 136 S. Ct. 1257, 1265 (2016). Additionally, depending on the form of the substantive rule, such a retroactive application could prompt states to conduct expensive and cumbersome retrials for which evidence may no longer exist.85×85. See Jason M. Zarrow & William H. Milliken, The Retroactivity of Substantive Rules to Cases on Collateral Review and the AEDPA, with a Special Focus on Miller v. Alabama, 48 Ind. L. Rev. 931, 963 (2015) (noting that retroactive application of substantive rules could spawn litigation concerning an individual’s entitlement to the rule and citing the Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002), as a relevant example). Lastly, though not mentioned directly by the Edwards Court, the same comity concerns that counsel against broad retroactive application of novel procedural rules apply to retroactive application of novel substantive rules — both frustrate the ability of state courts to render final convictions impervious to federal intervention.86×86. See O’Connor, supra note 76, at 9; see also William J. Brennan Jr., U.S. Sup. Ct., Federal Habeas Corpus and State Prisoners: An Exercise in Federalism, Second Annual William H. Leary Lecture (Oct. 26, 1961), in 7 Utah L. Rev. 423, 425–27 (1961) (describing the tensions between “constitutional principles securing fair and decent state criminal processes to those accused of crime,” id. at 425, and the demands of federalism); J. Richard Broughton, Habeas Corpus and the Safeguards of Federalism, 2 Geo. J.L. & Pub. Pol’y 109, 113 (2004) (describing “the implications for state sovereignty in federal habeas cases” as “inherent in the very nature of the action”).
Moreover, the other reason offered by the Edwards majority for its foreclosure of Teague’s watershed exception, that of the infrequency of the exception’s application,87×87. See Edwards, 141 S. Ct. at 1560. applies nearly as well to Teague’s other exception as it does to Teague’s first.88×88. See Zarrow & Milliken, supra note 85, at 934. Although, unlike its treatment of Teague’s watershed exception, the Court has held Teague’s substantive rules exception to apply,89×89. See, e.g., Bousley v. United States, 523 U.S. 614, 620–21 (1998). it has done so infrequently, meaning that reliance interests in its continued existence are minimal.90×90. Cf. Edwards, 141 S. Ct. at 1560. And the infrequency of the watershed exception’s application fails to hold up as an independent reason in favor of its overruling — under this logic, the Third Amendment should also be nullified.91×91. U.S. Const. amend. III; cf. Scott D. Gerber, An Unavoidably Brief Historiography of the Third Amendment, 82 Tenn. L. Rev. 627, 627 (2015). Thus, without a more developed theory of federal habeas as a postconviction remedy, the justifications offered by the Edwards Court for overruling Teague’s watershed exception may directly lead to the cutting back of Teague’s other exception.
Of course, there are significant hurdles to the Court cutting back Teague’s substantive exception. Namely, this step would require overturning the 2016 case Montgomery v. Louisiana,92×92. 136 S. Ct. 718 (2016). where the Court held that state courts are constitutionally required to give retroactive effect to new substantive rules on state habeas review.93×93. Id. at 729. However, since the Court’s ruling in Montgomery, the grounds have shifted considerably — Justices Kennedy and Ginsburg, who formed part of the Montgomery majority, have left the Court, while two of Montgomery’s dissenters, Justices Thomas and Alito, remain.94×94. The dissenters argued that neither Teague nor its exceptions were constitutionally required. See id. at 737 (Scalia, J., dissenting). This view lines up nicely with Justice Gorsuch’s view of the traditional rule of habeas, which similarly holds federal habeas review as only valid through a congressional grant of jurisdiction. See Edwards, 141 S. Ct. at 1569 (Gorsuch, J., concurring). Moreover, as Edwards itself demonstrates, the current Court (or at least a majority of the Justices) have shown a willingness to overrule precedent where they see appropriate.95×95. See, e.g., Ian Millhiser, Brett Kavanaugh’s Latest Decision Should Alarm Liberals, Vox (May 18, 2021, 8:00 AM), https://www.vox.com/2021/5/18/22440256/brett-kavanaugh-supreme-court-edwards-vannoy-abortion-criminal-justice-constitution-stare-decisis [https://perma.cc/4937-HA9S]. Also instructive on this point was the Court’s decision this Term in Jones v. Mississippi, 141 S. Ct. 1307 (2021). The decision diminished the effect of Montgomery’s predecessor, Miller v. Alabama, 567 U.S. 460 (2012), on juvenile defendants. See Andrew Cohen, Supreme Court: Let’s Make It Easier for Judges to Send Teenagers to Die in Prison, Brennan Ctr. for Just. (Apr. 27, 2021), https://www.brennancenter.org/our-work/analysis-opinion/supreme-court-lets-make-it-easier-judges-send-teenagers-die-prison [https://perma.cc/95B7-9AL4].
There are further reasons to think that Edwards may mean that more — perhaps even Teague itself — is up for grabs within the federal habeas regime than initially imagined. Importantly, the concurrences of Justice Thomas and Justice Gorsuch in Edwards suggest judicial appetite to reconsider the legal basis for Teague in favor of an approach more firmly rooted in finality and federalism.96×96. See Siegel, supra note 79, at 6–15; see also Richard M. Re, Reason and Rhetoric in Edwards v. Vannoy, 17 Duke J. Const. L. & Pub. Pol’y (forthcoming 2022) (manuscript at 10), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3865178 [https://perma.cc/92JK-YNEW]. And, like Teague’s watershed exception, Teague’s other exception has no clear connection to the “traditional rule” of habeas, which lacks space for judicial judgments of the novelty of rules,97×97. See Edwards, 141 S. Ct. at 1569 (Gorsuch, J., concurring) (explaining that the “traditional rule” of habeas is the notion that “[a] final judgment, after completion of trial and the exhaustion of any direct appellate review, was res judicata, and the sole exception was a lack of jurisdiction” (emphasis omitted)). Justice Gorsuch addressed the ambiguous relationship between Teague’s substantive exception and his preferred view of federal habeas directly, noting they are “perhaps” or “perhaps not” connected. Id. at 1571 n.6. and is arguably contrary to AEDPA’s “absolute bar on claims that state courts reasonably denied.”98×98. Id. at 1565 (Thomas, J., concurring) (noting that AEDPA “has no exception for retroactive rights”); see also Brief of Respondent at 46–50, Edwards, 141 S. Ct. 1547 (No. 19-5807) (arguing that AEDPA’s relitigation bar “forecloses retroactive application of Ramos,” id. at 46). However, the question of whether AEDPA bars retroactive relief entirely is one of statutory interpretation, about which reasonable minds may disagree. See Zarrow & Milliken, supra note 85, at 985.
However, what might seem like a loss can also be an opportunity. The Court’s willingness to overrule Teague’s watershed exception absent any direct request to do so99×99. See Edwards, 141 S. Ct. at 1578–81 (Kagan, J., dissenting). indicate the openness of the current iteration of the Roberts Court to a variety of theories of federal habeas — Justice Thomas and Justice Gorsuch presented possible perspectives, but, importantly, neither of their reasonings ultimately carried the day. By offering alternative theories — particularly, by identifying the role of considerations that countervail the force of finality — advocates can take this opening to frame federal collateral review’s purpose for the Court and ensure that a single consideration does not unreasonably dominate the Court’s view.