SUPREME COURT OF THE UNITED STATES
HENRY MONTGOMERY, PETITIONER v.
on writ of certiorari to the supreme court of louisiana
[January 25, 2016]
Justice Scalia, with whom Justice Thomas and Justice Alito join, dissenting.
The Court has no jurisdiction to decide this case, and the decision it arrives at is wrong. I respectfully dissent.
Louisiana postconviction courts willingly entertain
Eighth Amendment claims but, with limited exceptions, apply the law as it existed when the state prisoner was convicted and sentenced. Shortly after this Court announced Teague
489 U. S. 288 (1989)
, the Louisiana Supreme Court adopted Teague
framework to govern the provision of postconviction remedies available to state
prisoners in its state
courts as a matter of state
, 606 So. 2d 1292 (1992). In doing so, the court stated that it was “not bound” to adopt that federal framework. Id.,
at 1296. One would think, then, that it is none of our business that a 69-year-old Louisiana prisoner’s state-law motion to be resentenced according to Miller
, 567 U. S. ___ (2012), a case announced almost half a century after his sentence was final, was met with a firm rejection on state-law grounds by the Louisiana Supreme Court. But a majority of this Court, eager to reach the merits of this case, resolves the question of our jurisdiction by deciding that the Constitution requires
state postconviction courts to adopt Teague
’s exception for so-called “substantive” new rules and to provide state-law remedies for the violations of those rules to prisoners whose sentences long ago became final. This conscription into federal service of state postconviction courts is nothing short of astonishing.
announced that federal courts could not grant habeas corpus to overturn state convictions on the basis of a “new rule” of constitutional law—meaning one announced after the convictions became final—unless
that new rule was a “substantive rule” or a “watershed rul[e] of criminal procedure.” 489 U. S., at 311. The Teague
prescription followed from Justice Harlan’s view of the “retroactivity problem” detailed in his separate opinion in Desist
v. United States
394 U. S. 244,
(dissenting opinion), and later in Mackey
v. United States
401 U. S. 667,
(opinion concurring in judgment in part and dissenting in part). Placing the rule’s first exception in context requires more analysis than the majority has applied.
The Court in the mid-20th century was confounded by what Justice Harlan called the “swift pace of constitu-tional change,” Pickelsimer
375 U. S. 2,
(dissenting opinion), as it vacated and remanded many cases in the wake of Gideon
372 U. S. 335 (1963)
. Justice Harlan called upon the Court to engage in “informed and deliberate consideration” of “whether the States are constitutionally required to apply [Gideon
’s] new rule retrospectively, which may well require the reopening of cases long since finally adjudicated in accordance with then applicable decisions of this Court.” Pickelsimer, supra,
The Court answered that call in Linkletter
381 U. S. 618 (1965)
began with the premise “that we are neither required to apply, nor prohibited from applying, a decision retrospectively” and went on to adopt an equitable rule-by-rule approach to retroactivity, considering “the prior his-tory of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Id.,
framework proved unworkable when the Court began applying the rule-by-rule approach not only to cases on collateral review but also to cases on direct review, rejecting any distinction “between convictions now final” and “convictions at various stages of trial and direct review.” Stovall
388 U. S. 293,
. It was this rejection that drew Justice Harlan’s reproach in Desist
and later in Mackey
. He urged that “all ‘new’ rules of constitutional law must, at a minimum, be applied to all those cases which are still subject to direct review by this Court at the time the ‘new’ decision is handed down.” Desist, supra
, at 258 (dissenting opinion). “Simply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule constitute an indefensible departure from th[e] model of judicial review.” Mackey
The decision in Griffith
479 U. S. 314 (1987)
, heeded this constitutional concern. The Court
jettisoned the Linkletter
test for cases pending on direct review and adopted for them Justice Harlan’s rule of redressability: “[F]ailure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional
adjudication.” 479 U. S., at 322 (emphasis added). We established in Griffith
that this Court must play by our own “old rules”—rules we have settled before the defendant’s conviction and sentence become final, even those that are a “clear break from existing precedent”—for cases pending before us on direct appeal. Id.,
at 323. Since the Griffith
rule is constitutionally compelled, we instructed the lower state and federal courts to comply with it as well. Ibid.
followed on Griffith
two years later, the opinion contained no discussion of “basic norms of constitutional adjudication,” Griffith
at 322, nor any discussion of the obligations of state courts. Doing away with Linkletter
for good, the Court adopted Justice Harlan’s solution to “the retroactivity problem” for cases pending on collateral review—which he described not as a constitutional problem but as “a problem as to the scope of the habeas writ
, at 684 (emphasis added). Teague
held that federal habeas courts could no longer upset state-court convictions for violations of so-called “new rules,” not yet announced when the conviction became final. 489 U. S., at 310. But it
allowed for the previously mentioned exceptions to this rule of nonredressability: substantive rules placing “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe” and “watershed rules of criminal procedure.” Id.
, at 311. Then in Penry
492 U. S. 302 (1989)
, the Court expanded this first exception for substantive rules to embrace new rules “prohibiting a certain category of punishment for a class of defendants because of their status or offense.” Id.,
nor its exceptions are constitutionally compelled. Unlike today’s majority, the Teague-
era Court understood that cases on collateral review are fundamentally different from those pending on direct review because of “considerations of finality in the judicial process.” Shea
470 U. S. 51
–60 (1985). That line of finality demarcating the constitutionally required rule in Griffith
from the habeas rule in Teague
supplies the answer to the not-so-difficult question whether a state postconviction court must remedy the violation of a new substantive rule: No. A state court need only apply the law as it existed at the time a defendant’s conviction and sentence became final. See Griffith
at 322. And once final, “a new rule cannot reopen a door already closed.” James B. Beam Distilling Co.
501 U. S. 529,
(opinion of Souter, J.). Any relief a prisoner might receive in a state court after finality is a matter of grace, not constitutional prescription.
The majority can marshal no case support for its con-trary position. It creates a constitutional rule where none had been before: “Teague
’s conclusion establishing the retroactivity of new substantive rules is best understood as resting upon constitutional premises” binding in both federal and state courts. Ante,
8. “Best understood.” Because of what? Surely not because of its history and derivation.
Because of the Supremacy Clause, says the majority. Ante,
at 12. But the Supremacy Clause cannot possibly answer the question before us here. It only elicits another question: What federal law is supreme? Old or new? The majority’s champion, Justice Harlan, said the old rules apply for federal habeas review of a state-court conviction: “[T]he habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place,” Desist,
394 U. S., at 263 (dissenting opinion), for a state court cannot “toe the constitutional mark” that does not yet exist, Mackey
, 401 U. S., at 687 (opinion of Harlan, J.). Following his analysis, we have clarified time and again—recently in Greene
, 565 U. S. ___, ___–___ (2011) (slip op., at 4–5)—that federal
habeas courts are to review state-court decisions against the law and factual record that existed at the time the decisions were made. “Section 2254(d)(1) [of the federal habeas statute] refers, in the past tense, to a state-court adjudication that ‘resulted in’ a decision that was contrary to, or ‘involved’ an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made.” Cullen
563 U. S. 170
–182 (2011). How can it possibly be, then, that the Constitution requires a state
court’s review of its own convictions to be governed by “new rules” rather than (what suffices when federal courts review state courts) “old rules”?
The majority relies on the statement in United States
v. United States Coin & Currency
401 U. S. 715 (1971)
, that “ ‘[n]o circumstances call more for the invocation of a rule of complete retroactivity’ ” than when “ ‘the conduct being penalized is constitutionally immune from punishment.’ ” Ante,
at 9–10 (quoting 401 U. S., at 724). The majority neglects to mention that this statement was addressing the “circumstances” of a conviction that “had not become final
., at 724, n. 13 (emphasis added), when the “rule of complete retroactivity” was invoked. Coin & Currency
, an opinion written by (guess whom?) Justice Harlan,
merely foreshadowed the rule announced in Griffith
, that all cases pending on direct review receive the benefit of newly announced rules—better termed “old rules” for such rules were announced before
The majority also misappropriates Yates
484 U. S. 211 (1988)
, which reviewed a state habeas petitioner’s
Fourteenth Amendment claim that the jury instructions at his trial lessened the State’s burden to prove every element of his offense beyond a reasonable doubt. That case at least did involve a conviction that was final. But the majority is oblivious to the critical fact that Yates’s claim depended upon an old rule
, settled at the time of his trial. Id.,
at 217. This Court reversed the state habeas court for its refusal to consider that the jury instructions violated that old rule
. The majority places great weight upon the dictum
that the South Carolina habeas court “ ‘ha[d] a duty to grant the relief that federal law requires.’ ” Ante,
at 13 (quoting Yates
, at 218).
It is simply wrong to divorce that dictum
from the facts it addressed. In that context, Yates
merely reinforces the line drawn by Griffith
: when state courts provide a forum for postconviction relief, they need to play by the “old rules” announced before
the date on which a defendant’s conviction and sentence became final.
The other sleight of hand performed by the majority is its emphasis on Ex parte Siebold
100 U. S. 371 (1880)
. That case considered a petition for a federal writ of habeas corpus following a federal conviction, and the initial issue it confronted was its jurisdiction. A federal court has no inherent habeas corpus power, Ex parte Bollman
, 4 Cranch 75, 94 (1807), but only that which is conferred (and limited) by statute, see, e.g., Felker
518 U. S. 651,
. As Siebold
stated, it was forbidden to use the federal habeas writ “as a mere writ of error.” 100 U. S., at 375. “The only ground on which this court, or any court, without some special statute authorizing it, [could] give relief on habeas corpus
to a prisoner under conviction and sentence of another court is the want of jurisdiction in such court over the person or the cause, or some other matter rendering its proceedings void.” Ibid.
Turning to the facts before it, the Court decided it was within its power to hear Siebold’s claim, which did not merely protest that the conviction and sentence were “erroneous” but contended that the statute he was con-victed of violating was unconstitutional and the conviction therefore void: “[I]f the laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the causes.” Id.,
at 376–377. Siebold
is thus a decision that expands the limits
of this Court’s power to issue a federal habeas writ for a federal prisoner.
The majority, however, divines from Siebold
“a general principle” that “a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before the rule was announced.” Ante
, at 11. That is utterly impossible. No “general principle” can rationally be derived from Siebold
about constitutionally required remedies in state courts; indeed, the opinion does not even speak to constitutionally required remedies in federal
courts. It is a decision about this Court’s statutory power to grant the Original Writ, not about its constitutional obligation to do so. Nowhere in Siebold
did this Court intimate that relief was constitutionally required—or as the majority puts it, that a court would have had “no authority” to leave in place Siebold’s conviction, ante,
The majority’s sorry acknowledgment that “Siebold
and the other cases discussed in this opinion, of course, do not directly control the question the Court now answers for the first time,” ibid.
, is not nearly enough of a disclaimer. It is not just that they “do not directly control,” but that the dicta cherry picked from those cases are irrelevant; they addressed circumstances fundamentally different from those to which the majority now applies them. Indeed, we know for sure that the author of some of those dicta, Justice Harlan, held views that flatly contradict the majority.
The majority’s maxim that “state collateral review courts have no greater power than federal habeas courts to mandate that a prisoner continue to suffer punishment barred by the Constitution,” ante,
at 12–13, begs the question rather than contributes to its solution. Until today, no federal court was constitutionally obliged
to grant relief for the past violation of a newly announced substantive rule. Until today, it was Congress’s prerogative to do away with Teague
’s exceptions altogether. Indeed, we had left unresolved the question whether Congress had already done that when it amended a section of the habeas corpus statute to add backward-looking language governing the review of state-court decisions. See Antiterrorism and Effective Death Penalty Act of 1996, §104,
1219, codified at
28 U. S. C. §2254(d)(1); Greene,
565 U. S,
at ___, n. (slip op., at 5, n.). A maxim shown to be more relevant to this case, by the analysis that the majority omitted, is this: The Supremacy Clause does not impose upon state courts a constitutional obligation it fails to impose upon federal courts.
All that remains to support the majority’s conclusion is that all-purpose Latin canon: ipse dixit
. The majority opines that because a substantive rule eliminates a State’s power to proscribe certain conduct or impose a certain punishment, it has “the automatic consequence of invalidating a defendant’s conviction or sentence.” Ante,
at 9. What provision of the Constitution could conceivably produce such a result? The Due Process Clause? It surely cannot be a denial of due process for a court to pronounce a final judgment which, though fully in accord with federal constitutional law at the time, fails to anticipate a change to be made by this Court half a century into the future. The Equal Protection Clause? Both statutory and (increasingly) constitutional laws change. If it were a denial of equal protection to hold an earlier defendant to a law more stringent than what exists today, it would also be a denial of equal protection to hold a later defendant to a law more stringent than what existed 50 years ago. No principle of equal protection requires the criminal law of all ages to be the same.
The majority grandly asserts that “[t]here is no grandfather clause that permits States to enforce punishments the Constitution forbids
, at 12 (emphasis added). Of course the italicized phrase begs the question. There most certainly is a grandfather clause—one we have called finality
—which says that the Constitution does not require States to revise punishments that were lawful when they were imposed. Once a conviction has become final, whether new rules or old ones will be applied to revisit the conviction is a matter entirely within the State’s control; the Constitution has nothing to say about that choice. The majority says that there is no “possibility of a valid result” when a new substantive rule is not applied retroactively. Ante
, at 9. But the whole controversy here arises because many think there is
a valid result when a defendant has been convicted under the law that existed when his conviction became final. And the States are unquestionably entitled to take that view of things.
The majority’s imposition of Teague
’s first exception upon the States is all the worse because it does not adhere to that exception as initially conceived by Justice Harlan—an exception for rules that “place, as a matter of constitutional interpretation, certain kinds of primary, private individual conduct
beyond the power of the criminal lawmaking authority to proscribe.” Mackey
, 401 U. S., at 692 (emphasis added). Rather, it endorses the exception as expanded by Penry
, to include “rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.” 492 U. S., at 330. That expansion empowered and obligated federal (and after today state) habeas courts to invoke this Court’s
Eighth Amendment “evolving standards of decency” jurisprudence to upset punishments that were constitutional when imposed but are “cruel and unusual,” U. S. Const., Amdt. 8, in our newly enlightened society. See Trop
356 U. S. 86,
. The “evolving standards” test concedes that in 1969 the State had the power to punish Henry Montgomery as it did. Indeed, Montgomery could at that time have been sentenced to death by our yet unevolved society. Even 20 years later, this Court reaffirmed that the Constitution posed no bar to death sentences for juveniles. Stanford
492 U. S. 361 (1989)
. Not until our People’s “standards of decency” evolved a mere 10 years ago—nearly 40 years after Montgomery’s sentence was imposed—did this Court declare the death penalty unconstitutional for juveniles. Roper
543 U. S. 551 (2005)
Even then, the Court reassured States that “the punishment of life imprisonment without the possibility of parole is itself a severe sanction,” implicitly still available for juveniles. Id.
, at 572. And again five years ago this Court left in place this severe sanction for juvenile homicide offenders. Graham
560 U. S. 48,
. So for the five decades Montgomery has spent in prison, not one of this Court’s precedents called into question the legality of his sentence—until the People’s “standards of decency,” as perceived by five Justices, “evolved” yet again in Miller
’s central purpose was to do away with the old regime’s tendency to “continually
force the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards.” 489 U. S., at 310. Today’s holding thwarts that purpose with a vengeance. Our ever-evolving Constitution changes the rules of “cruel and unusual punishments” every few years. In the passage from Mackey
that the majority’s opinion quotes, ante,
at 13, Justice Harlan noted the diminishing force of finality (and hence the equitable propriety—not the constitutional requirement—of disregarding it) when the law punishes nonpunishable conduct
, see 401 U. S., at 693. But one cannot imagine a clearer frustration of the sensible policy of Teague
when the ever-moving target of impermissible punishments
is at issue.
Today’s holding not only fore-closes Congress from eliminating this expansion of Teague
in federal courts, but also foists this distortion upon the States.
II. The Retroactivity of Miller
Having created jurisdiction by ripping Teague
’s first exception from its moorings, converting an equitable rule governing federal habeas relief to a constitutional command governing state courts as well, the majority proceeds to the merits. And here it confronts a second obstacle to its desired outcome. Miller
, the opinion it wishes to impose upon state postconviction courts, simply does not decree what the first part of the majority’s opinion says Teague
’s first exception requires to be given retroactive effect: a rule “set[ting] forth categorical
constitutional guarantees that place certain criminal laws and punishments altogether
beyond the State’s power to impose.” Ante
at 9 (emphasis added). No problem. Having distorted Teague
, the majority simply proceeds to rewrite Miller
The majority asserts that Miller
“rendered life without parole an unconstitutional penalty for ‘a class of defendants because of their status’—that is, juvenile offenders whose crimes reflect the transient immaturity of youth.” Ante,
at 17. It insists that Miller
barred life-without-parole sentences “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility. For that reason, Miller
is no less substantive than are Roper
at 17–18. The problem is that Miller
stated, quite clearly, precisely the opposite: “Our decision does not categorically bar a penalty for a class of offenders or type of crime—as, for example, we did in Roper
. Instead, it mandates only that a sentencer follow a certain process
—considering an offender’s youth and attendant characteristics—before imposing a particular penalty.” 567 U. S., at ___ (slip op., at 20) (emphasis added).
To contradict that clear statement, the majority opinion quotes passages from Miller
that assert such things as “mandatory life-without-parole sentences for children ‘pos[e] too great a risk of disproportionate punishment’ ” and “ ‘appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.’ ” Ante
, at 16 (quoting Miller
at ___ (slip op., at 17)). But to say that a punishment might be inappropriate and disproportionate for certain juvenile offenders is not to say that it is unconstitutionally void. All of the statements relied on by the majority do nothing more than express the reason
why the new, youth-protective procedure
prescribed by Miller
is desirable: to deter life sentences for certain juvenile offenders. On the issue of whether Miller
rendered life-without-parole penalties unconstitutional, it is impossible to get past Miller
unambiguous statement that “[o]ur decision does not categorically bar a penalty for a class of offenders” and “mandates only that a sentencer follow a certain process . . . before imposing a particular penalty.” 567 U. S., at ___ (slip op., at 20). It is plain as day that the majority is not applying Miller
, but rewriting it.[1
And the rewriting has consequences beyond merely making Miller
’s procedural guarantee retroactive. If, indeed, a State is categorically prohibited from imposing life without parole on juvenile offenders whose crimes do not “reflect permanent incorrigibility,” then even when the procedures that Miller
demands are provided the constitutional requirement is not necessarily satisfied. It remains available for the defendant sentenced to life without parole to argue that his crimes did not in fact “reflect permanent incorrigibility.” Or as the majority’s opinion puts it: “That Miller
did not impose a formal factfinding requirement does not leave States free to sentence a child[[2
]] whose crime reflects transient immaturity to life without parole. To the contrary, Miller
established that this punishment is disproportionate under the
Eighth Amendment.” Ante
, at 20.
How wonderful. Federal and (like it or not) state judges are henceforth to resolve the knotty “legal” question: whether a 17-year-old who murdered an innocent sheriff’s deputy half a century ago was at the time of his trial “incorrigible.” Under Miller
, bear in mind, the inquiry is whether the inmate was seen to be incorrigible when he was sentenced—not whether he has proven corrigible and so can safely be paroled today. What silliness. (And how impossible in practice, see Brief for National District Attorneys Assn. et al. as Amici Curiae
9–17.) When in Lockett
438 U. S. 586,
, the Court imposed the thitherto unheard-of requirement that the sentencer in capital cases must consider and weigh all “relevant mitigating factors,” it at least did not impose the substantive (and hence judicially reviewable) requirement that the aggravators must outweigh the mitigators; it would suffice that the sentencer thought
so. And, fairly read, Miller
did the same. Not so with the “incorrigibility” requirement that the Court imposes today to make Miller
But have no fear. The majority does not seriously expect state and federal collateral-review tribunals to engage in this silliness, probing the evidence of “incorrigibility” that existed decades ago when defendants were sentenced. What the majority expects (and intends) to happen is set forth in the following not-so-subtle invitation: “A State may remedy a Miller
violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.” Ante
, at 21. Of course. This whole exercise, this whole distortion of Miller
, is just a devious way of eliminating life without parole for juvenile offenders. The Court might have done that expressly (as we know, the Court can decree anything
), but that would have been something of an embarrassment. After all, one of the justifications the Court gave for decreeing an end to the death penalty for murders (no matter how many) committed by a juvenile was that life without parole was a severe enough punishment. See Roper
, 543 U. S., at 572. How could the majority—in an opinion written by the very author of Roper
—now say that
punishment is also
unconstitutional? The Court expressly refused to say so in Miller.
567 U. S., at ___ (slip op., at 17). So the Court refuses again today, but merely makes imposition of that severe sanction a practical impossibility. And then, in Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed by simply “permitting juvenile homicide offenders to be considered for parole.” Ante,
at 21. Mission accomplished.