A fundamental principle of the rule of law (and indeed, rationality) holds that like cases should be decided alike.1 The law of retro-activity — the application of new legal rules to cases begun or finalized prior to the new rules’ announcement2 — is one of the few, puzzling exceptions to this principle. Last Term, the Supreme Court in Edwards v. Vannoy3 held that the jury unanimity requirement decided in Ramos v. Louisiana4 did not apply retroactively.5 The Court also went a step further and held that the watershed exception of Teague v. Lane,6 allowing retroactive application of new “watershed rules of criminal procedure,”7 was completely foreclosed.8 Given the Court’s justifications for its decision — namely, a heightened regard for preserving the finality of state court judgments9 — 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 guilty of armed robbery, rape, and kidnapping.11 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 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 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
Eight years later, Edwards filed a petition for federal habeas relief in the U.S. District Court for the Middle District of Louisiana.15 He argued that his imprisonment as a result of a nonunanimous jury verdict was a constitutional violation requiring remedy.16 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 In Apodaca, Justice Powell, writing the controlling opinion,18 held that the Constitution required a unanimous jury verdict in federal criminal trials but did not require the same in state criminal trials.19 Following the district court’s decision, Edwards appealed to the Fifth Circuit, which denied a certificate of appealability in his case.20 Edwards then petitioned for a writ of certiorari in the Supreme Court.21
While Edwards’s petition for certiorari was pending, the Supreme Court decided Ramos v. Louisiana.22 With Ramos, Edwards’s challenge was transformed.23 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 State criminal trials, like federal criminal trials, now required a unanimous jury verdict for conviction.25 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
The Supreme Court held that they did not.27 The Court’s decision in Teague had inaugurated a general rule against retroactivity (though with two important exceptions).28 Adopting Teague’s reasoning, Justice Kavanaugh29 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 He also zeroed in on the potential costs of Ramos’s retroactive application, pointing to retrial costs, public safety risks, and victim retraumatization.31
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 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 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 The Court devoted relatively little space to this point,35 as the Ramos Court itself had acknowledged that it was overruling its precedent.36 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
Justice Kavanaugh then asked if the Ramos rule was a “watershed rule[]” that applied retroactively.38 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 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 Batson v. Kentucky,41 and Miranda v. Arizona.42 Comparing Ramos to the Court’s other criminal procedure cases, Justice Kavanaugh concluded that Ramos failed to meet Teague’s high standard.43 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 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 He also discounted any reliance interests in the existence of the exception.46
Justice Thomas and Justice Gorsuch concurred with the Court’s opinion.47 Justice Thomas argued that the Court could also have resolved Edwards through the text of the Antiterrorism and Effective Death Penalty Act of 199648 (AEDPA), the prevailing statute governing federal habeas corpus.49 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
Justice Gorsuch reasoned that the Teague retroactivity test posed a question the Court “ha[d] no business asking,”51 finding that retroactive application of decisions through habeas relief would not have squared with the writ’s meaning for much of its history.52 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 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 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
Justice Kagan dissented.56 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 Justice Kagan also pointed to the importance of Ramos’s overruling of Apodaca as a marker of Ramos’s status as watershed.58 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 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 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 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
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 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 Prior to Teague, the Court had taken a scattershot approach to retroactivity,65 holding some rules retroactive only for the named petitioner while granting blanket retroactivity for others.66 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
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 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 Later decisions by the Court emphasized the balance between these considerations struck by the federal habeas regime.70
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 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 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 Instead, the Edwards Court focused only on the costs of disrupting final judgments74 and on the chimerical nature of Teague’s watershed exception in application.75
Prizing finality absent due consideration for the other values embodied by federal collateral review has its drawbacks.76 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 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
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 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 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
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 Even though the Edwards majority itself did not dispute the propriety of Teague’s other exception,83 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 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 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
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 applies nearly as well to Teague’s other exception as it does to Teague’s first.88 Although, unlike its treatment of Teague’s watershed exception, the Court has held Teague’s substantive rules exception to apply,89 it has done so infrequently, meaning that reliance interests in its continued existence are minimal.90 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 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 where the Court held that state courts are constitutionally required to give retroactive effect to new substantive rules on state habeas review.93 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 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
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 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 and is arguably contrary to AEDPA’s “absolute bar on claims that state courts reasonably denied.”98
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 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.