Did Justice Stevens Pull a Fast One? The Hidden Logic of a Recent Retroactivity Case in the Supreme Court

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.

Although the Danforth case involved highly technical and somewhat convoluted doctrine, it nonetheless warrants unpacking, for it may reveal an unexpected and important shift in the Justices' thinking about the relationship of state law to federal law.

The Danforth Case and the Retroactivity Question

At Stephen Danforth's 1996 trial for sexual conduct with a minor, the prosecution introduced a videotaped interview of his six-year-old victim. Danforth objected to this evidence, but the state courts rejected the objection under the standard the Supreme Court had set forth in the 1980 case of Ohio v. Roberts: whether the evidence was sufficiently reliable to satisfy the Sixth Amendment right of the accused to confront his accuser. Danforth was convicted.

After Danforth had exhausted his direct appeals, in 2004, the Supreme Court overruled the Roberts decision. In Crawford v. Washington, the Justices held that the admission into evidence of videotaped testimony of a witness who is otherwise available for trial, violates the Sixth Amendment (which applies to the states via the Fourteenth Amendment). After the Crawford decision, Danforth filed a habeas corpus petition in Minnesota state court, seeking a new trial.


If Danforth had sought habeas relief in federal court, he would have lost. Under the Supreme Court's landmark 1989 decision in Teague v. Lane, federal courts do not grant habeas relief to state prisoners based on "new rules" of constitutional law, except in two narrow circumstances. The rationale for the Teague rule is straightforward: States have a strong interest in the finality of criminal convictions; if a defendant had a trial that conformed to the constitutional standards that were understood to apply at the time of that trial, then the state generally should not have to re-try the defendant simply because it failed to anticipate a novel decision by the Supreme Court.

A contrary rule would put too great a burden on the state and could also create a disincentive for the Justices to recognize constitutional rights: If recognizing a new constitutional right required new trials for defendants who had originally been tried decades earlier, then the Justices would be very reluctant ever to recognize new rights. ..more.. by MICHAEL C. DORF