Document Type

Article

Publication Date

1990

Center/Program

Center for Public Research and Leadership

Abstract

Someone I know, more a student of contemporary fashion than I, sometimes describes people dressed in uniformly dark clothing as "slightly retro." I am not sure of the allusion,I but what I can discern leads me to think that the Supreme Court's nonretroactivity decisions beginning with Teague v. Lane 2 are - puns aside - more than just "slightly retro."

The Court's innovation may be stated as follows: For 160 years, Congress empowered federal judges to order state officials to release or retry individuals held in custody in violation of federal law as those federal judges, and not the state officials, interpreted that law.' In 1989 and 1990, in the absence of statutory revision,4 the Court announced a series of decisions' holding that federal judges henceforth may order incarcerated individuals released or retried only if those judges find a violation of federal law not only by their own lights but also by the lights of all "reasonable" state judges, including the judges who pronounced and affirmed the applicant's conviction in the first place.6 In the guise of a series of prudential nonretroactivity holdings," the Court has replaced a statute giving every federal judge jurisdiction to remedy all "custody" that she independently determines to be "in violation of the Constitution"' with a statute forbidding those judges to remedy custody unless they can say that all "reasonable" judges in the country would find a violation.9

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