Everything old is new again: Justice Scalia's activist originalism in Schriro v. Summerlin.

AuthorJohnson, Marc E.

Schriro v. Summerlin, 124 S. Ct. 2519 (2004).

  1. INTRODUCTION

    In Schriro v. Summerlin, (1) the Supreme Court held by a five-to-four margin that the rules announced in Ring v. Arizona (2) and Apprendi v. New Jersey (3) will not apply retroactively on collateral review of cases finally decided prior to those decisions. Thus, although the Supreme Court has declared the sentencing scheme under which Warren Summerlin was sentenced to death unconstitutional, Summerlin's sentence will stand because he exhausted all of his direct appeals before the Court nullified the sentencing scheme.

    This Note will argue that Schriro is indefensible: the decision is a jurisprudential failure that misconstrues the relevant precedent in the areas of the Sixth Amendment, habeas retroactivity, and the Eighth Amendment. Further, Justice Scalia's majority opinion privileges finality over justice and makes a virtue out of federal deference to unconstitutional state court decisions and laws. Finally, there is no compelling policy justification for the decision. Rather, as Justice Breyer noted in dissent, the retroactive application of Ring and Apprendi would only minimally disrupt state criminal justice systems. For all of these reasons, the Court should overrule itself and reject Schriro as soon as possible.

  2. BACKGROUND

    The Court confronted a seemingly straightforward question in Schriro: "whether Ring v. Arizona ... applies retroactively to cases already final on direct review." (4) However, this apparent simplicity conceals the fact that Schriro involved several intricate bodies of law and posed a difficult and multi-faceted jurisprudential problem. First, the current law on habeas retroactivity is a web of inconsistent--and at times, virtually incoherent--precedent and ambiguous statutory language. (5) Moreover, the Sixth Amendment rules announced in Ring and its parent case, Apprendi, present further analytical complications since the Court did not address how either decision impacts habeas adjudication. Because Schriro involved capital punishment, the Court's ruling also implicates such Eighth Amendment concerns as proportionality, fairness, and accuracy. (6) As Schriro demonstrates, Sixth and Eighth Amendment issues grow considerably more complex when they appear in conjunction. (7) Ultimately, though, the central issue presented by Schriro was the interaction between habeas retroactivity and the Sixth Amendment.

    1. HABEAS RETROACTIVITY

      While the Court's Sixth Amendment precedents are ambiguous, the governing law on retroactivity is even muddier. An amalgam of statutory enactments, judicial precedents, and constitutional text, habeas retroactivity is an exceptionally convoluted body of law.

      1. Habeas History to 1867

        The Constitution provides that "[t]he privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (8) Curiously, this negative reference in the Suspension Clause is the only allusion in the Constitution to the "Great Writ." (9) At common law during the period of the Constitution's framing, most petitioners sought habeas relief as a means of challenging pretrial imprisonment. (10) Following the framing, the first Congress limited the federal writ's scope to federal prisoners. (11)

        In contrast to Congress's early reluctance to grant a broadly applicable right of habeas corpus for state prisoners, by the mid-nineteenth century the Supreme Court had established that the Constitution guaranteed some version of the federal habeas remedy in state courts. (12) During this period, Congress expanded federal habeas in response to specific conflicts between state and federal governments, and as such tensions intensified prior to the Civil War the writ increasingly became an instrument for enforcing national policies. (13) Still, throughout the antebellum period, the use of federal habeas by state prisoners remained limited in scope. (14)

      2. Habeas from the 1867 Act to the Warren Court

        The writ's narrow compass changed dramatically after the Civil War, when Congress for the first time made federal habeas relief generally available to state prisoners. (15) In 1868, the Supreme Court affirmed the constitutionality of this "expansive view" (16) toward the availability of the federal habeas writ, holding in Ex parte McCardle that the 1867 statute expanding habeas review "brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties or laws. It is impossible to widen this jurisdiction." (17) But even as the Court asserted the general availability of federal habeas relief to state prisoners, it also held that courts should actually grant the writ only where a state prisoner had been convicted by a trial court that did not possess jurisdiction. (18)

        For nearly a century after McCardle, however, the Court gradually expanded the writ's application, stating that habeas should be available whenever a prisoner's conviction violated his constitutional rights, and habeas offered the only possibility for the vindication of those rights. (19) This growth in the scope of federal habeas review culminated in the Court' s landmark 1953 decision Brown v. Allen. (20) In Brown, the Court decisively announced that the balance of power in the habeas context, which had once clearly favored the state courts, now rested with reviewing federal courts. (21) Justice Frankfurter's majority opinion stated that federal courts owed no deference to state courts' holdings on questions of federal law, as "it is precisely these questions that the federal judge [must] decide." (22) In effect, Brown empowered federal district courts to police the state courts, ensuring that they faithfully applied Supreme Court precedent. (23)

        The expansion of federal habeas took on added significance during the decade and a half that followed Brown, as the Warren Court announced a host of rules of criminal procedure. (24) This confluence of new constitutional rules and broader habeas authority contributed substantially to the dramatic increase in the caseload of the federal courts that began in the early 1960s and continues today. (25) The proliferation of new rules of criminal procedure also raised an important question: when could a prisoner invoke these rules in the habeas context? (26)

      3. Retroactivity Before Teague

        In a series of decisions issued throughout the 1960s, (27) the Court formulated a three-factor test for the analysis of habeas retroactivity. The Court summarized the test in Stovall v. Denno, (28) where the retroactivity analysis focused on "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." (29) Moreover, because "the way in which these factors combine must inevitably vary with the dictate involved," and because each new rule presents a unique combination of the three factors in the Stovall test, "[t]he retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based." (30) Under the Stovall regime, federal courts hearing habeas claims possessed plenary authority in determining whether to apply a new constitutional rule retroactively. (31) With respect to new-rule retroactivity, then, habeas was all but indistinguishable from direct review. Thus, the expansion of habeas perfectly mirrored the Warren Court's contemporaneous promulgation of new rules.

      4. Teague v. Lane

        1. Teague background

          The Stovall three-factor test had governed habeas retroactivity for roughly two decades when, in 1987, the Court broadened Stovall's guarantee of habeas retroactivity. (32) Its decision in Griffith v. Kentucky explicitly stated that new constitutional rules would always apply retroactively to habeas claims if the conviction under appeal was not finally decided--i.e., the petitioner had not exhausted his direct appeals--at the time of the new rule's exposition. (33) Thus in Griffith, for the first time, the Court mandated retroactive application of new constitutional rules under certain circumstances. So two years later, when the Court announced its decision in Teague v. Lane, (34) the aggressiveness with which Justice O'Connor's plurality opinion sought to limit retroactivity marked a radical new direction in the Court's habeas jurisprudence. (35)

          In Teague, the Justices confronted the following situation: an Illinois jury convicted the petitioner, an African-American man, of multiple counts of murder and armed robbery. (36) Teague's prosecutor had used all of his ten peremptory challenges to strike African-American prospective jurors, and Teague's counsel moved for a mistrial, arguing that the selection process violated Teague's right to be tried by a jury representative of his community. (37) The trial court denied the motion and the appellate court affirmed, rendering Teague's conviction final. (38)

          Teague reprised his representative-jury argument in a petition for federal habeas relief. (39) Although the district court was sympathetic to the core of his claim, it ruled against him, finding itself bound by both Supreme Court and Seventh Circuit precedent. (40) On appeal, Teague again reiterated his earlier argument. (41) This time he met with success, as a panel held that the jury selection process had violated the fair-cross-section requirement, thus presenting a prima facie case of impermissible racial discrimination. (42) However, when the court of appeals reconsidered Teague's petition en banc, it overturned the panel's decision. (43) The circuit court postponed rehearing pending the Supreme Court's decision in Batson v. Kentucky. (44) Batson, in turn, overruled some of the precedent on which the district court had...

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