Civil disobedience in the Supreme Court: retroactivity and the compromise between formal and substantive justice.

• Author: Faso, Nicholas
• Position: Revealing the Impact & Aftermath of Miscarriages of Justice

1. INTRODUCTION

   In the area of criminal law, specifically criminal procedure, the Supreme Court makes a compromise between the sometimes competing notions of "formal" and "substantive" justice. This compromise, found in the Court's doctrine of retroactivity, was developed to prevent the perceived injustice of allowing the factually guilty to challenge their previously rendered convictions on the basis of new developments in case law. The doctrine of retroactivity (which is really one of nonretroactivity) prevents these challenges by providing courts with a mechanism to apply some decisional law prospectively, depending on the law at issue and the stage of the litigant's case. As a judicial contrivance that departs from centuries of precedent, the doctrine of retroactivity may be understood as an act of "civil disobedience" by the Supreme Court designed to avoid the unpalatable and perhaps, unjust, effect that a mechanistic application of the law would produce. This article will demonstrate that, in making this compromise, the Supreme Court subordinates the role of formal justice to achieve the substantive goal of punishing wrongdoers. In order to arrive at this point, this article will first examine the theories of "formal" and "substantive" justice.

   1. Formal and Substantive Justice

      Formal justice (sometimes referred to as "procedural justice" (1)) is a principle of justice for an institution, such as a government. (2) The legal philosopher, John Rawls, described formal justice as "adherence to principle ... [or] obedience to system." (3) Its central precept is that the law must be administered evenhandedly. (4) This precept is often formulated as "treat like cases alike." (5) Treating like cases alike requires that the law be administered in accordance with itself, regardless of the circumstances of a particular case and without consideration of its "defects or virtues." (6) Formal justice--a highlight of the American legal system--requires officials to apply the law in the same way to everyone, regardless of whether they approve of the content of the law or the result such uniform application produces.

      Substantive justice, on the other hand, involves a value judgment about the content of law and its consequences. (7) It is concerned with the outcome or effect of the law. (8) Whereas formal justice finds value internally in the regular and consistent application of law, substantive justice finds value through externalities such as morality, religion, or culture. For example, a system of criminal law may dictate that punishment be proportionate to the crime, or that punishment serve ends such as retribution or rehabilitation. These are substantive goals and substantive justice would be achieved if these ends were met. Accordingly, the theory of substantive justice does not embody any particular substantive goal; indeed, what is considered "substantively just" may vary from person to person.

      There is debate as to whether a system of formal justice necessarily produces substantively just outcomes. (9) However, the notion that justice may be achieved solely through rigid adherence to the rule of law (or, that formal justice is the epitome of justice) is easily refuted. For example, imagine a law which prohibited people with red hair from entering the park. This law could be equally enforced, with only those who have red hair being punished under the rule. While the evenhanded application of this law would satisfy the requirements of formal justice, it can fairly be said that few people would find such a law just.(10) On the other hand, a law that prohibited people from littering in the park is, arguably, substantively just (because it forwards a worthwhile environmental purpose), but it would be unjust if the park police arbitrarily enforced this rule, based on whim, bias, or any other reason. Thus, injustice appears to result when either formal or substantive justice is missing from the equation. The overlap between formal and substantive justice suggests that a comprehensive theory of "justice" must incorporate elements of each. Rather than tackling that issue here (which, thankfully, is beyond the scope of this piece), this article will demonstrate how a conflict between the two theories gave rise to the doctrine of retroactivity, which subordinates formal justice (process) to substantive justice (outcome). By emphasizing outcome over process, the doctrine of retroactivity prioritizes substantive justice over precedent and may thus be understood as an act of "civil disobedience."

   2. Civil Disobedience

      In A Theory of Justice, John Rawls argues that, within an otherwise just institution, civil disobedience is justified in order to "bring[] about ... change in the law" that "addresses the sense of justice of the majority." (11) That is, citizens are justified in departing from the law, in light of the majority's conception of justice, to achieve positive reform of the law. (12) In the following sections, I argue that the Supreme Court departs from the principle of formal justice by refusing to "treat like cases alike," in an act of Rawlsian "civil disobedience," to achieve the substantive goal of punishing wrongdoers. (13) I've described the Court's departure from the law as "civil disobedience" in order to highlight that this departure was intended to serve "justice" as opposed to some personal or political goal. Some might refer to this as "judicial activism," (14) but I employ the concept of "civil disobedience" liberally to emphasize that the Court created the doctrine of retroactivity to address what Rawls refers to as the "sense of justice of the larger society," (15) as opposed to the individual justices's personal views of public policy. As such, I do not intend to discuss whether the Court's departure is actually justified, but that the Court departs from the law because it believes it to comport with society's "sense of justice."

2. THE EVOLUTION OF RETROACTIVITY

   During the Warren Court, great advances were made in the field of criminal law, especially with regard to the rights of the accused. (16) Perhaps the most influential of these advances was the incorporation of the Bill of Rights against the states. (17) Incorporation threatened to have a dramatic effect on the criminal justice system because, up to that point, the states had largely disregarded the Bill of Rights. During the same period, the availability of habeas corpus was expanded by Brown v. Allen (18) and Fay v. Noia. (19) Brown held that constitutional claims raised in state courts were not barred by res judicata on collateral review, (20) and Fay held that prisoners who had failed to litigate their constitutional claims on direct appeal were not barred by collateral estoppel from raising those claims on collateral review. (21) These decisions embody the formal justice principle of "treating like cases alike" by allowing habeas petitioners to raise constitutional claims advanced by other litigants, regardless of the procedural posture of their appeals.

   When combined with the newly incorporated Bill of Rights, the expansion of habeas corpus made it possible for thousands of prisoners, with convictions rendered in violation of the Bill of Rights, to challenge their convictions. (22) Most of these prisoners were factually guilty, (23) but the evidence upon which they were convicted would now have to be excluded under the protections of the Bill of Rights. Under formal justice, this would be the correct result because we would fail to treat like cases alike if some defendants were allowed to exclude incriminating, but improperly gathered evidence, while others (already convicted upon such evidence) could not. This is considered to be the correct result despite the occasional side-effect of allowing the wrongdoer to escape punishment through such legal technicalities. Indeed, formal justice is valued in the American system as protective of liberty despite that it occasionally allows wrongdoers to go free. (24) While it is protective of liberty, formal justice may generate the substantive injustice of allowing wrongdoers to escape punishment. This substantive injustice is an unintended consequence that is generally tolerated as the best alternative to a system that is less protective of individual rights. However, the expansion of habeas corpus and the incorporation of the Bill of Rights combined to create the possibility for many wrongdoers to escape punishment--a substantive injustice the Supreme Court was unwilling to tolerate.

   In order to avoid this injustice, the Court subordinated formal justice to substantive justice by holding that some decisional law would operate prospectively in Linkletter v. Walker. (25) Practically speaking, this ruling was intended to limit the impact of the Court's recent decisions by preventing thousands of prisoners from seeking habeas review. (26) Beyond its practical consequence, however, Linkletter and its progeny reveal a judicial sensitivity to the "effects" of law as opposed to its mechanistic application. (27)

   1. Retroactivity as the Status Quo

      At common law all judicial decisions were given retroactive effect, (28) even in cases already final (meaning that "the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari ha[s] elapsed"). (29) Automatic retroactivity was part of the Anglo-American common law tradition under which courts did not make law but merely discovered it. (30) Under this view, "new rules" were not actually new, but a declaration of what has always been the law. When a court overruled a prior decision and announced a "new rule," the old interpretation of the law was said to be "a failure at true discovery and was consequently never the law." (31) Lord Blackstone argued for this view of adjudication, noting that it was beyond the power of the court to "pronounce new law"; rather, it was the duty of the court to...