(Slip Opinion) OCTOBER TERM, 2007 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

DANFORTH v. MINNESOTA 

CERTIORARI TO THE SUPREME COURT OF MINNESOTA 

No. 06–8273. Argued October 31, 2007—Decided February 20, 2008 

After this Court announced a “new rule” for evaluating the reliability of

testimonial statements in criminal cases, see Crawford v. Washington, 541 U. S. 36, 68–69, petitioner sought state postconviction relief, 

arguing that he was entitled to a new trial because admitting the victim’s taped interview at his trial violated Crawford’s rule. The Minnesota trial and appeals courts concluded that Crawford did not apply retroactively under Teague v. Lane, 489 U. S. 288. The State 

Supreme Court agreed, and also concluded that state courts are not

free to give a decision of this Court announcing a new constitutional 

rule of criminal procedure broader retroactive application than that 

given by this Court. 

Held: Teague does not constrain the authority of state courts to give

broader effect to new rules of criminal procedure than is required by 

that opinion. Pp. 4–27.

(a) Crawford announced a “new rule”—as defined by Teague— 

because its result “was not dictated by precedent existing at the time

the defendant’s conviction became final,” Teague, 489 U. S., at 301 

(plurality opinion). It was not, however, a rule “of [this Court’s] own 

devising” or the product of its own views about sound policy, Crawford, 541 U. S., at 67. Pp. 4–6.

(b) The Court first adopted a “retroactivity” standard in Linkletter 

v. Walker, 381 U. S. 618, 629, but later rejected that standard for

cases pending on direct review, Griffith v. Kentucky, 479 U. S. 314, 

and on federal habeas review, Teague v. Lane, 489 U. S. 288. Under 

Teague, new constitutional rules of criminal procedure may not be

applied retroactively to cases on federal habeas review unless they

place certain primary individual conduct beyond the States’ power to 

proscribe or are “watershed” rules of criminal procedure. Id., at 310 

(plurality opinion). Pp. 6–11. 
2 DANFORTH v. MINNESOTA 

Syllabus 

(c) Neither Linkletter nor Teague explicitly or implicitly constrained the States’ authority to provide remedies for a broader range 

of constitutional violations than are redressable on federal habeas. 

And Teague makes clear that its rule was tailored to the federal habeas context and thus had no bearing on whether States could provide broader relief in their own postconviction proceedings. Nothing

in Justice O’Connor’s general nonretroactivity rule discussion in 

Teague asserts or even intimates that her definition of the class eligible for relief under a new rule should inhibit the authority of a state

agency or state court to extend a new rule’s benefit to a broader class 

than she defined. Her opinion also clearly indicates that Teague’s 

general nonretroactivity rule was an exercise of this Court’s power to 

interpret the federal habeas statute. Since Teague is based on statutory authority that extends only to federal courts applying a federal

statute, it cannot be read as imposing a binding obligation on state 

courts. The opinion’s text and reasoning also illustrate that the rule 

was meant to apply only to federal courts considering habeas petitions challenging state-court criminal convictions. The federal interest in uniformity in the application of federal law does not outweigh 

the general principle that States are independent sovereigns with 

plenary authority to make and enforce their own laws as long as they

do not infringe on federal constitutional guarantees. The Teague rule 

was intended to limit federal courts’ authority to overturn state convictions not to limit a state court’s authority to grant relief for violations of new constitutional law rules when reviewing its own State’s

convictions. Subsequent cases confirm this view. See, e.g., Beard v. 

Banks, 542 U. S. 406, 412. Pp. 11–18. 

(d) Neither Michigan v. Payne, 412 U. S. 47, nor American Trucking Assns., Inc. v. Smith, 496 U. S. 167, cast doubt on the state 

courts’ authority to provide broader remedies for federal constitutional violations than mandated by Teague. Pp. 18–24.

(e) No federal rule, either implicitly announced in Teague, or in 

some other source of federal law, prohibits States from giving broader 

retroactive effect to new rules of criminal procedure. Pp. 24–26. 

718 N. W. 2d 451, reversed and remanded. 

STEVENS, J., delivered the opinion of the Court, in which SCALIA, 

SOUTER, THOMAS, GINSBURG, BREYER, and ALITO, JJ., joined. ROBERTS, 

C. J., filed a dissenting opinion, in which KENNEDY, J., joined. 
_________________ 

_________________ 

Cite as: 552 U. S. ____ (2008) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 06–8273 

STEPHEN DANFORTH, PETITIONER v. MINNESOTA 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

MINNESOTA

[February 20, 2008] 

JUSTICE STEVENS delivered the opinion of the Court. 

New constitutional rules announced by this Court that

place certain kinds of primary individual conduct beyond 

the power of the States to proscribe, as well as “watershed” rules of criminal procedure, must be applied in all

future trials, all cases pending on direct review, and all 

federal habeas corpus proceedings. All other new rules of 

criminal procedure must be applied in future trials and in

cases pending on direct review, but may not provide the

basis for a federal collateral attack on a state-court conviction. This is the substance of the “Teague rule” described 

by Justice O’Connor in her plurality opinion in Teague v. 

Lane, 489 U. S. 288 (1989).1 The question in this case is 

whether Teague constrains the authority of state courts to 

—————— 

1Although Teague was a plurality opinion that drew support from

only four Members of the Court, the Teague rule was affirmed and 

applied by a majority of the Court shortly thereafter. See Penry v. 

Lynaugh, 492 U. S. 302, 313 (1989) (“Because Penry is before us on

collateral review, we must determine, as a threshold matter, whether 

granting him the relief he seeks would create a new rule. Under 

Teague, new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions” (citation and 

internal quotation marks omitted)). 
2 DANFORTH v. MINNESOTA 

Opinion of the Court 

give broader effect to new rules of criminal procedure than

is required by that opinion. We have never suggested that 

it does, and now hold that it does not. 

I 

In 1996 a Minnesota jury found petitioner Stephen

Danforth guilty of first-degree criminal sexual conduct 

with a minor. See Minn. Stat. §609.342, subd. 1(a) (1994). 

The 6-year-old victim did not testify at trial, but the jury 

saw and heard a videotaped interview of the child. On 

appeal from his conviction, Danforth argued that the 

tape’s admission violated the Sixth Amendment’s guarantee that “[i]n all criminal prosecutions, the accused shall 

enjoy the right . . . to be confronted with the witnesses 

against him.” Applying the rule of admissibility set forth 

in Ohio v. Roberts, 448 U. S. 56 (1980), the Minnesota 

Court of Appeals concluded that the tape “was sufficiently 

reliable to be admitted into evidence,” and affirmed the 

conviction. State v. Danforth, 573 N. W. 2d 369, 375 

(1997). The conviction became final in 1998 when the 

Minnesota Supreme Court denied review and petitioner’s

time for filing a writ of certiorari elapsed. See Caspari v. 

Bohlen, 510 U. S. 383, 390 (1994).

After petitioner’s conviction had become final, we announced a “new rule” for evaluating the reliability of 

testimonial statements in criminal cases. In Crawford v. 

Washington, 541 U. S. 36, 68–69 (2004), we held that 

where testimonial statements are at issue, “the only indicium of reliability sufficient to satisfy constitutional 

demands is the one the Constitution actually prescribes:

confrontation.” 

 Shortly thereafter, petitioner filed a state postconviction 

petition, in which he argued that he was entitled to a new 

trial because the admission of the taped interview violated

the rule announced in Crawford. Applying the standards 

set forth in Teague, the Minnesota trial court and the 
Cite as: 552 U. S. ____ (2008) 3 

Opinion of the Court 

Minnesota Court of Appeals concluded that Crawford did 

not apply to petitioner’s case. The State Supreme Court

granted review to consider two arguments: (1) that the 

lower courts erred in holding that Crawford did not apply

retroactively under Teague; and (2) that the state court

was “free to apply a broader retroactivity standard than

that of Teague,” and should apply the Crawford rule to 

petitioner’s case even if federal law did not require it to do 

so. 718 N. W. 2d 451, 455 (2006). The court rejected both 

arguments. Ibid. 

With respect to the second, the Minnesota court held

that our decisions in Michigan v. Payne, 412 U. S. 47 

(1973), American Trucking Assns., Inc. v. Smith, 496 U. S. 

167 (1990), and Teague itself establish that state courts 

are not free to give a Supreme Court decision announcing 

a new constitutional rule of criminal procedure broader 

retroactive application than that given by this Court.2 The 

Minnesota Court acknowledged that other state courts 

had held that Teague does not apply to state postconviction proceedings,3 but concluded that “we are not free to 

—————— 

2The relevant passage in the Minnesota Supreme Court opinion 

states: 

“Danforth argues that Teague dictates the limits of retroactive 

application of new rules only in federal habeas corpus proceedings and

does not limit the retroactive application of new rules in state postconviction proceedings. Danforth is incorrect when he asserts that state 

courts are free to give a Supreme Court decision of federal constitutional criminal procedure broader retroactive application than that

given by the Supreme Court. . . . In light of Payne and American Trucking Associations, we cannot apply state retroactivity principles when 

determining the retroactivity of a new rule of federal constitutional

criminal procedure if the Supreme Court has already provided relevant 

federal principles.” 718 N. W. 2d 451, 456 (2006). 3See, e.g., Daniels v. State, 561 N. E. 2d 487, 489 (Ind. 1990); State ex 

rel. Taylor v. Whitley, 606 So. 2d 1292, 1296–1297 (La. 1992); State v. 

Whitfield, 107 S. W. 3d 253, 266–268 (Mo. 2003); Colwell v. State, 118 

Nev. 807, 816–819, 59 P. 3d 463, 470–471 (2002) (per curiam); Cowell v. 

Leapley, 458 N. W. 2d 514, 517–518 (S. D. 1990). 
4 DANFORTH v. MINNESOTA 

Opinion of the Court 

fashion our own standard of retroactivity for Crawford.” 

718 N. W. 2d, at 455–457. 

Our recent decision in Whorton v. Bockting, 549 U. S. 

___ (2007), makes clear that the Minnesota court correctly

concluded that federal law does not require state courts to 

apply the holding in Crawford to cases that were final 

when that case was decided. Nevertheless, we granted

certiorari, 550 U. S. ___ (2007), to consider whether 

Teague or any other federal rule of law prohibits them 

from doing so.4 

II 

We begin with a comment on the source of the “new 

rule” announced in Crawford. For much of our Nation’s 

history, federal constitutional rights—such as the Sixth 

Amendment confrontation right at issue in Crawford— 

were not binding on the States. Federal law, in fact, 

imposed no constraints on the procedures that state courts

could or should follow in imposing criminal sanctions on 

their citizens. Neither the Federal Constitution as originally ratified nor any of the Amendments added by the 

Bill of Rights in 1791 gave this Court or any other federalcourt power to review the fairness of state criminal procedures. Moreover, before 1867 the statutory authority of 

federal district courts to issue writs of habeas corpus did 

not extend to convicted criminals in state custody. See Act 

of Feb. 5, 1867, ch. 28, §1, 14 Stat. 385. 

The ratification of the Fourteenth Amendment radically

changed the federal courts’ relationship with state courts. 

That Amendment, one of the post-Civil War Reconstruc-

—————— 

4We note at the outset that this case does not present the questions 

whether States are required to apply “watershed” rules in state postconviction proceedings, whether the Teague rule applies to cases 

brought under 28 U. S. C. §2255 (2000 ed., Supp. V), or whether Congress can alter the rules of retroactivity by statute. Accordingly, we 

express no opinion on these issues. 
Cite as: 552 U. S. ____ (2008) 5 

Opinion of the Court 

tion Amendments ratified in 1868, is the source of this 

Court’s power to decide whether a defendant in a state

proceeding received a fair trial—i.e., whether his deprivation of liberty was “without due process of law.” U. S. 

Const., Amdt. 14, §1 (“[N]or shall any State deprive any 

person of life, liberty, or property, without due process of 

law”). In construing that Amendment, we have held that 

it imposes minimum standards of fairness on the States, 

and requires state criminal trials to provide defendants

with protections “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U. S. 319, 325 (1937). 

Slowly at first, and then at an accelerating pace in the

1950’s and 1960’s, the Court held that safeguards afforded 

by the Bill of Rights—including a defendant’s Sixth 

Amendment right “to be confronted with the witnesses 

against him”—are incorporated in the Due Process Clause

of the Fourteenth Amendment and are therefore binding 

upon the States. See Gideon v. Wainwright, 372 U. S. 335 

(1963) (applying the Sixth Amendment right to counsel to 

the States); Pointer v. Texas, 380 U. S. 400, 403 (1965) 

(holding that “the Sixth Amendment’s right of an accused

to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the 

Fourteenth Amendment”). Our interpretation of that

basic Sixth Amendment right of confrontation has evolved 

over the years.

In Crawford we accepted the petitioner’s argument that

the interpretation of the Sixth Amendment right to confrontation that we had previously endorsed in Roberts, 448 

U. S. 56, needed reconsideration because it “stray[ed] from

the original meaning of the Confrontation Clause.” 541 

U. S., at 42. We “turn[ed] to the historical background of 

the Clause to understand its meaning,” id., at 43, and 

relied primarily on legal developments that had occurred 

prior to the adoption of the Sixth Amendment to derive the

correct interpretation. Id., at 43–50. We held that the 
6 DANFORTH v. MINNESOTA 

Opinion of the Court 

“Constitution prescribes a procedure for determining the 

reliability of testimony in criminal trials, and we, no less 

than the state courts, lack authority to replace it with one 

of our own devising.” Id., at 67. 

Thus, our opinion in Crawford announced a “new 

rule”—as that term is defined in Teague—because the 

result in that case “was not dictated by precedent existing 

at the time the defendant’s conviction became final,” 

Teague, 489 U. S., at 301 (plurality opinion). It was not, 

however, a rule “of our own devising” or the product of our

own views about sound policy. 

III 

Our decision today must also be understood against the

backdrop of our somewhat confused and confusing “retroactivity” cases decided in the years between 1965 and 

1987. Indeed, we note at the outset that the very word 

“retroactivity” is misleading because it speaks in temporal 

terms. “Retroactivity” suggests that when we declare that

a new constitutional rule of criminal procedure is “nonretroactive,” we are implying that the right at issue was not

in existence prior to the date the “new rule” was announced. But this is incorrect. As we have already explained, the source of a “new rule” is the Constitution

itself, not any judicial power to create new rules of law. 

Accordingly, the underlying right necessarily pre-exists

our articulation of the new rule. What we are actually

determining when we assess the “retroactivity” of a new 

rule is not the temporal scope of a newly announced right, 

but whether a violation of the right that occurred prior to

the announcement of the new rule will entitle a criminal 

defendant to the relief sought.5 

—————— 

5 It may, therefore, make more sense to speak in terms of the “redressability” of violations of new rules, rather than the “retroactivity” of 

such rules. Cf. American Trucking Assns., Inc. v. Smith, 496 U. S. 167, 

201 (1990) (SCALIA, J., concurring in judgment) (“The very framing of 
Cite as: 552 U. S. ____ (2008) 7 

Opinion of the Court 

Originally, criminal defendants whose convictions were

final were entitled to federal habeas relief only if the court 

that rendered the judgment under which they were in 

custody lacked jurisdiction to do so. Ex parte Watkins, 3 

Pet. 193 (1830); Ex parte Lange, 18 Wall. 163, 176 (1874); 

Ex parte Siebold, 100 U. S. 371, 376–377 (1880).6 In 1915, 

the realm of violations for which federal habeas relief 

would be available to state prisoners was expanded to 

include state proceedings that “deprive[d] the accused of

his life or liberty without due process of law.” Frank v. 

Mangum, 237 U. S. 309, 335 (1915). In the early 1900’s, 

however, such relief was only granted when the constitutional violation was so serious that it effectively rendered 

the conviction void for lack of jurisdiction. See, e.g., Moore 

v. Dempsey, 261 U. S. 86 (1923) (mob domination of a 

trial); Mooney v. Holohan, 294 U. S. 103 (1935) (per curiam) (knowing use of perjured testimony by the prosecution); Waley v. Johnston, 316 U. S. 101 (1942) (per curiam) 

(coerced guilty plea).7 

—————— 

the issue that we purport to decide today—whether our decision in 

[American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266 (1987),] shall

‘apply’ retroactively—presupposes [an incorrect] view of our decisions 

as creating the law, as opposed to declaring what the law already is”).

Unfortunately, it would likely create, rather than alleviate, confusion to 

change our terminology at this point. Accordingly, we will continue to

utilize the existing vocabulary, despite its shortcomings. 6Although our post-1867 cases reflected a “softening” of the concept of

jurisdiction to embrace claims that the statute under which the petitioner had been convicted was unconstitutional or that the detention 

was based on an illegally imposed sentence, the Court adhered to the 

basic rule that habeas was unavailable to review claims of constitutional error that did not go to the trial court’s jurisdiction. See Bator, 

Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 471, 483–484 (1963); Hart, The Supreme 

Court 1958 Term, Foreword: The Time Chart of the Justices, 73 Harv. 

L. Rev. 84, 103–104 (1959). 7 “[I]n Waley v. Johnston, 316 U. S. 101 (1942), the Court openly discarded the concept of jurisdiction—by then more [of] a fiction than 
8 DANFORTH v. MINNESOTA 

Opinion of the Court 

The serial incorporation of the Amendments in the Bill 

of Rights during the 1950’s and 1960’s imposed more

constitutional obligations on the States and created more

opportunity for claims that individuals were being convicted without due process and held in violation of the 

Constitution. Nevertheless, until 1965 the Court continued to construe every constitutional error, including newly

announced ones, as entitling state prisoners to relief on 

federal habeas. “New” constitutional rules of criminal 

procedure were, without discussion or analysis, routinely 

applied to cases on habeas review. See, e.g., Jackson v. 

Denno, 378 U. S. 368 (1964); Gideon, 372 U. S. 335; 

Eskridge v. Washington Bd. of Prison Terms and Paroles, 

357 U. S. 214 (1958) (per curiam).

 In Linkletter v. Walker, 381 U. S. 618 (1965), the Court 

expressly considered the issue of “retroactivity” for the

first time. Adopting a practical approach, we held that the 

retroactive effect of each new rule should be determined 

on a case-by-case basis by examining the purpose of the 

rule, the reliance of the States on the prior law, and the 

effect on the administration of justice of retroactive application of the rule. Id., at 629. Applying those considerations to the exclusionary rule announced in Mapp v. Ohio, 

367 U. S. 643 (1961), we held that the Mapp rule would 

not be given retroactive effect; it would not, in other 

words, be applied to convictions that were final before the 

date of the Mapp decision.8 Linkletter, 381 U. S., at 636– 

—————— 

anything else—as a touchstone of the availability of federal habeas

review, and acknowledged that such review is available for claims of

disregard of the constitutional rights of the accused . . . .” Wainwright v. 

Sykes, 433 U. S. 72, 79 (1977) (internal quotation marks omitted). 8 Linkletter arose in the context of a denial of federal habeas relief, so 

its holding was “necessarily limited to convictions which had become 

final by the time Mapp . . . [was] rendered.” Johnson v. New Jersey, 

384 U. S. 719, 732 (1966). We noted in Linkletter that Mapp was being

applied to cases that were still pending on direct review at the time it

was decided, so the issue before us was expressly limited to “whether 
Cite as: 552 U. S. ____ (2008) 9 

Opinion of the Court 

640. 

During the next four years, application of the Linkletter 

standard produced strikingly divergent results. As Justice 

Harlan pointed out in his classic dissent in Desist v. 

United States, 394 U. S. 244, 257 (1969), one new rule was 

applied to all cases subject to direct review, Tehan v. 

United States ex rel. Shott, 382 U. S. 406 (1966); another 

to all cases in which trials had not yet commenced, Johnson v. New Jersey, 384 U. S. 719 (1966); another to all 

cases in which tainted evidence had not yet been introduced at trial, Fuller v. Alaska, 393 U. S. 80 (1968) (per 

curiam); and still others only to the party involved in the

case in which the new rule was announced and to all 

future cases in which the proscribed official conduct had

not yet occurred, Stovall v. Denno, 388 U. S. 293 (1967); 

DeStefano v. Woods, 392 U. S. 631 (1968) (per curiam). He 

reasonably questioned whether such decisions “may properly be considered the legitimate products of a court of

law, rather than the commands of a super-legislature.” 

394 U. S., at 259. 

Justice Harlan’s dissent in Desist, buttressed by his

even more searching separate opinion in Mackey v. United 

States, 401 U. S. 667, 675 (1971) (opinion concurring in 

judgments in part and dissenting in part), and scholarly 

criticism,9 laid the groundwork for the eventual demise of 

the Linkletter standard. In Griffith v. Kentucky, 479 U. S. 

314 (1987), the Court rejected as “unprincipled and inequi-

—————— 

the exclusionary principle enunciated in Mapp applies to state court

convictions which had become final before rendition of our opinion.”

381 U. S., at 622 (footnote omitted). Shortly thereafter, however, we 

held that the three-pronged Linkletter analysis should be applied both

to convictions that were final before rendition of our opinions and to

cases that were still pending on direct review. See Johnson, 384 U. S., 

at 732; Stovall v. Denno, 388 U. S. 293 (1967). 9See, e.g., Haddad, “Retroactivity Should be Rethought”: A Call for

the End of the Linkletter Doctrine, 60 J. Crim. L., C. & P. S. 417 (1969). 
10 DANFORTH v. MINNESOTA 

Opinion of the Court 

table,” the application of the Linkletter standard to cases 

pending on direct review. In Teague, Justice O’Connor 

reaffirmed Griffith’s rejection of the Linkletter standard 

for determining the “retroactive” applicability of new rules 

to state convictions that were not yet final and rejected the 

Linkletter standard for cases pending on federal habeas 

review. She adopted (with a significant modification) the

approach advocated by Justice Harlan for federal collateral review of final state judgments.

Justice O’Connor endorsed a general rule of nonretroactivity for cases on collateral review, stating that “[u]nless

they fall within an exception to the general rule, new 

constitutional rules of criminal procedure will not be

applicable to those cases which have become final before

the new rules are announced.” 489 U. S., at 310 (plurality 

opinion). The opinion defined two exceptions: rules that 

render types of primary conduct “ ‘beyond the power of the

criminal law-making authority to proscribe,’” id., at 311, 

and “watershed” rules that “implicate the fundamental 

fairness of the trial,” id., at 311, 312, 313.10 

It is clear that Linkletter and then Teague considered 

what constitutional violations may be remedied on federal

habeas.11 They did not define the scope of the “new” constitutional rights themselves. Nor, as we shall explain, 

did Linkletter or Teague (or any of the other cases relied 

upon by respondent and the Minnesota Supreme Court)

speak to the entirely separate question whether States can 

provide remedies for violations of these rights in their own 

postconviction proceedings. 

—————— 

10Rules of the former type “are more accurately characterized as

substantive rules not subject to [Teague’s] bar.” Schriro v. Summerlin, 

542 U. S. 348, 352, n. 4 (2004). 11Similarly, Johnson, and Griffith v. Kentucky, 479 U. S. 314 (1987),

defined the scope of constitutional violations that would be remedied on

direct appeal. 
Cite as: 552 U. S. ____ (2008) 11 

Opinion of the Court 

IV

Neither Linkletter nor Teague explicitly or implicitly 

constrained the authority of the States to provide remedies for a broader range of constitutional violations than 

are redressable on federal habeas. Linkletter spoke in 

broad terms about the retroactive applicability of new 

rules to state convictions that had become final prior to 

our announcement of the rules. Although Linkletter arose 

on federal habeas, the opinion did not rely on that procedural posture as a factor in its holding or analysis. Arguably, therefore, the approach it established might have

been applied with equal force to both federal and state 

courts reviewing final state convictions. But we did not 

state—and the state courts did not conclude—that Linkletter imposed such a limitation on the States.12 

A year after deciding Linkletter, we granted certiorari in 

Johnson to address the retroactivity of the rules announced in Escobedo v. Illinois, 378 U. S. 478 (1964), and 

Miranda v. Arizona, 384 U. S. 436 (1966). Applying the

standard announced in Linkletter, we held that those rules 

should be applied only to trials that began after the respective dates of those decisions; they were given no retro-

—————— 

12The dissent is correct that at least one “thoughtful legal scholar”

believed that Linkletter did preclude States from applying new constitutional rules more broadly than our cases required. Post, at 4 (citing

Mishkin, Foreword: The High Court, The Great Writ, and the Due 

Process of Time and Law, 79 Harv. L. Rev. 56, 91, n. 132 (1965)). 

Notably, this comment was made in the context of an attack on Linkletter’s prospective approach as inconsistent with the idea that judges are

“bound by a body of fixed, overriding law.” Mishkin, 79 Harv. L. Rev., 

at 62. Moreover, the footnote cited by the dissent concludes with a 

statement that “the reservation to the states of the power to apply [new

rules] to all convictions, . . . is . . . the preferable pattern.” Id., at 91, n. 

132. In all events, even if Linkletter and its progeny rested on the 

assumption that “new rules” of constitutional law did not exist until

announced by this Court, that view of the law was rejected when we 

endorsed Justice Harlan’s analysis of retroactivity. 
12 DANFORTH v. MINNESOTA 

Opinion of the Court 

active effect beyond the parties in Miranda and Escobedo 

themselves.13 

Notably, the Oregon Supreme Court decided to give

retroactive effect to Escobedo despite our holding in Johnson. In State v. Fair, 263 Ore. 383, 502 P. 2d 1150 (1972),

the Oregon court noted that it was continuing to apply 

Escobedo retroactively and correctly stated that “we are 

free to choose the degree of retroactivity or prospectivity

which we believe appropriate to the particular rule under 

consideration, so long as we give federal constitutional 

rights at least as broad a scope as the United States Supreme Court requires.” 263 Ore., at 387–388, 502 P. 2d, at 

1152. In so holding, the Oregon court cited our language 

in Johnson that “‘States are still entirely free to effectuate

under their own law stricter standards than those we have 

laid down and to apply those standards in a broader range

of cases than is required by this decision.’” 263 Ore., at 

386, 502 P. 2d, at 1151 (quoting Johnson, 384 U. S., at 

733).14 

—————— 

13That same year, we similarly denied retroactive effect to the rule

announced in Griffin v. California, 380 U. S. 609 (1965), prohibiting

prosecutorial comment on the defendant’s failure to testify. See Tehan 

v. United States ex rel. Shott, 382 U. S. 406 (1966). Shortly thereafter, 

in a case involving a Griffin error, we held for the first time that there 

are some constitutional errors that do not require the automatic reversal of a conviction. Chapman v. California, 386 U. S. 18, 22 (1967). 

Both Shott and Chapman protected the State of California from a

potentially massive exodus of state prisoners because their prosecutors

and judges had routinely commented on a defendant’s failure to testify. 14Although the plain meaning of this language in Johnson is that a 

state creating its own substantive standards can be as generous with

their retroactive effect as it wishes, courts and commentators both 

before and after Teague v. Lane, 489 U. S. 288 (1989), cited this language in support of the proposition that state courts “may apply new 

constitutional standards ‘in a broader range of cases than is required’ 

by th[is] Court’s decision not to apply the standards retroactively.” 

Colwell v. State, 118 Nev. 807, 818, 59 P. 3d 463, 470–471 (2002) (per 

curiam); see also Stith, A Contrast of State and Federal Court Author-
Cite as: 552 U. S. ____ (2008) 13 

Opinion of the Court 

Like Linkletter, Teague arose on federal habeas. Unlike 

in Linkletter, however, this procedural posture was not 

merely a background fact in Teague. A close reading of 

the Teague opinion makes clear that the rule it established was tailored to the unique context of federal habeas 

and therefore had no bearing on whether States could 

provide broader relief in their own postconviction proceedings than required by that opinion. Because the case 

before us now does not involve either of the “Teague exceptions,” it is Justice O’Connor’s discussion of the general

rule of nonretroactivity that merits the following three 

comments. 

First, not a word in Justice O’Connor’s discussion—or in 

either of the opinions of Justice Harlan that provided the

blueprint for her entire analysis—asserts or even intimates that her definition of the class eligible for relief

under a new rule should inhibit the authority of any state 

agency or state court to extend the benefit of a new rule to 

a broader class than she defined. 

Second, Justice O’Connor’s opinion clearly indicates that 

Teague’s general rule of nonretroactivity was an exercise 

of this Court’s power to interpret the federal habeas statute. Chapter 153 of Title 28 of the U. S. Code gives federal 

courts the authority to grant “writs of habeas corpus,” but 

leaves unresolved many important questions about the

scope of available relief. This Court has interpreted that 

congressional silence—along with the statute’s command

to dispose of habeas petitions “as law and justice require,” 

28 U. S. C. §2243—as an authorization to adjust the scope 

—————— 

ity to Grant Habeas Relief, 38 Val. U. L. Rev. 421, 443 (2004). Thirty 

years after deciding State v. Fair, the Oregon Supreme Court “disavowed” this analysis based on our decisions in Oregon v. Hass, 420 

U. S. 714 (1975), and American Trucking Assns., Inc. v. Smith, 496 

U. S. 167. Page v. Palmateer, 336 Ore. 379, 84 P. 3d 133 (2004). As we 

explain infra, at 19, 20, its reliance on those cases was misplaced, and 

its decision to change course was therefore misguided. 
14 DANFORTH v. MINNESOTA 

Opinion of the Court 

of the writ in accordance with equitable and prudential 

considerations. See, e.g., Brecht v. Abrahamson, 507 U. S. 

619 (1993) (harmless-error standard); McCleskey v. Zant, 

499 U. S. 467 (1991) (abuse-of-the-writ bar to relief); 

Wainwright v. Sykes, 433 U. S. 72 (1977) (procedural 

default); Stone v. Powell, 428 U. S. 465 (1976) (cognizability of Fourth Amendment claims). Teague is plainly

grounded in this authority, as the opinion expressly situated the rule it announced in this line of cases adjusting 

the scope of federal habeas relief in accordance with equitable and prudential considerations. 489 U. S., at 308 

(plurality opinion) (citing, inter alia, Wainwright and 

Stone).15 Since Teague is based on statutory authority 

—————— 

15Subsequent decisions have characterized Teague in a similar fashion. See, e.g., Brecht, 507 U. S., at 633, 634 (stating that “in defining

the scope of the writ, we look first to the considerations underlying our

habeas jurisprudence,” and identifying Teague as an example). And 

individual Justices have been even more explicit. See Day v. 

McDonough, 547 U. S. 198, 214 (2006) (SCALIA, J., dissenting) (describing, inter alia, the Teague rule as having been “created by the habeas 

courts themselves, in the exercise of their traditional equitable discretion . . . because [it was] seen as necessary to protect the interests of

comity and finality that federal collateral review of state criminal 

proceedings necessarily implicates”); Withrow v. Williams, 507 U. S. 

680, 699 (1993) (O’Connor, J., concurring in part and dissenting in part)

(listing Teague as one illustration of the principle that “federal courts 

exercising their habeas powers may refuse to grant relief on certain

claims because of ‘prudential concerns’ such as equity and federalism”);

507 U. S., at 718 (SCALIA, J., concurring in part and dissenting in part) 

(stating that Teague and other “gateways through which a habeas

petitioner must pass before proceeding to the merits of a constitutional

claim” are “grounded in the equitable discretion of habeas courts” 

(internal quotation marks and brackets omitted)); Teague, 489 U. S., at 

317 (White, J., concurring in part and concurring in judgment) (characterizing Teague as a decision “construing the reach of the habeas corpus 

statutes” and contrasting it with Griffith, which “appear[s] to have

constitutional underpinnings”); 489 U. S., at 332–333 (Brennan, J., 

dissenting) (characterizing Teague as an unwarranted change in “[this

Court’s] interpretation of the federal habeas statute”); see also Mackey 

v. United States, 401 U. S. 667, 684 (1971) (Harlan, J., concurring in 
Cite as: 552 U. S. ____ (2008) 15 

Opinion of the Court 

that extends only to federal courts applying a federal

statute, it cannot be read as imposing a binding obligation 

on state courts. 

Third, the text and reasoning of Justice O’Connor’s

opinion also illustrate that the rule was meant to apply 

only to federal courts considering habeas corpus petitions

challenging state-court criminal convictions. Justice 

O’Connor made numerous references to the “Great writ” 

and the “writ,” and expressly stated that “[t]he relevant 

frame of reference” for determining the appropriate retroactivity rule is defined by “the purposes for which the writ 

of habeas corpus is made available.” 489 U. S., at 306 

(plurality opinion). Moreover, she justified the general

rule of nonretroactivity in part by reference to comity and

respect for the finality of state convictions. Federalism 

and comity considerations are unique to federal habeas 

review of state convictions. See, e.g., State v. Preciose, 129 

N. J. 451, 475, 609 A. 2d 1280, 1292 (1992) (explaining 

that comity and federalism concerns “simply do not apply 

when this Court reviews procedural rulings by our lower 

courts”). If anything, considerations of comity militate in 

favor of allowing state courts to grant habeas relief to a

broader class of individuals than is required by Teague. 

And while finality is, of course, implicated in the context of 

state as well as federal habeas, finality of state convictions

is a state interest, not a federal one. It is a matter that 

States should be free to evaluate, and weigh the importance of, when prisoners held in state custody are seeking 

a remedy for a violation of federal rights by their lower 

courts. 

The dissent correctly points out that Teague was also 

grounded in concerns over uniformity and the inequity 

inherent in the Linkletter approach. There is, of course, a 

—————— 

judgments in part and dissenting in part) (describing the problem of 

retroactivity as “a problem as to the scope of the habeas writ”). 
16 DANFORTH v. MINNESOTA 

Opinion of the Court 

federal interest in “reducing the inequity of haphazard 

retroactivity standards and disuniformity in the application of federal law.” Post, at 12. This interest in uniformity, however, does not outweigh the general principle that 

States are independent sovereigns with plenary authority 

to make and enforce their own laws as long as they do not 

infringe on federal constitutional guarantees. The fundamental interest in federalism that allows individual States 

to define crimes, punishments, rules of evidence, and rules

of criminal and civil procedure in a variety of different

ways—so long as they do not violate the Federal Constitution—is not otherwise limited by any general, undefined 

federal interest in uniformity. Nonuniformity is, in fact,

an unavoidable reality in a federalist system of government. Any State could surely have adopted the rule of 

evidence defined in Crawford under state law even if that 

case had never been decided. It should be equally free to 

give its citizens the benefit of our rule in any fashion that 

does not offend federal law. 

It is thus abundantly clear that the Teague rule of nonretroactivity was fashioned to achieve the goals of federal 

habeas while minimizing federal intrusion into state 

criminal proceedings. It was intended to limit the authority of federal courts to overturn state convictions—not to

limit a state court’s authority to grant relief for violations 

of new rules of constitutional law when reviewing its own 

State’s convictions.16 

—————— 

16The lower federal courts have also applied the Teague rule to motions to vacate, set aside, or correct a federal sentence pursuant to 28

U. S. C. §2255 (2000 ed., Supp. V). Much of the reasoning applicable to

applications for writs of habeas corpus filed pursuant to §2254 seems 

equally applicable in the context of §2255 motions. See United States v. 

Hayman, 342 U. S. 205 (1952) (explaining that §2255 was enacted as a

functional equivalent for habeas corpus to allow federal prisoners to 

bring a collateral attack in the court that imposed the sentence rather

than a court that happened to be near the prison). 
Cite as: 552 U. S. ____ (2008) 17 

Opinion of the Court 

Our subsequent cases, which characterize the Teague 

rule as a standard limiting only the scope of federal habeas relief, confirm that Teague speaks only to the context 

of federal habeas. See, e.g., Beard v. Banks, 542 U. S. 406, 

412 (2004) (“Teague’s nonretroactivity principle acts as a

limitation on the power of federal courts to grant habeas

corpus relief to state prisoners” (internal quotation marks, 

ellipsis, and brackets omitted)); Caspari, 510 U. S., at 389 

(“The [Teague] nonretroactivity principle prevents a federal court from granting habeas corpus relief to a state

prisoner based on a rule announced after his conviction

and sentence became final”).

It is also noteworthy that for many years following 

Teague, state courts almost universally understood the 

Teague rule as binding only federal habeas courts, not 

state courts. See, e.g., Cowell v. Leapley, 458 N. W. 2d 514 

(S. D. 1990); Preciose, 129 N. J. 451, 609 A. 2d 1280; State 

ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 256–257, 

548 N. W. 2d 45, 49 (1996) (choosing of its own volition to 

adopt the Teague rule); but see State v. Egelhoff, 272 

Mont. 114, 900 P. 2d 260 (1995).17 Commentators were 

similarly confident that Teague’s “restrictions appl[ied]

only to federal habeas cases,” leaving States free to “determine whether to follow the federal courts’ rulings on

retroactivity or to fashion rules which respond to the

unique concerns of that state.” Hutton, Retroactivity in 

the States: The Impact of Teague v. Lane on State Postconviction Remedies, 44 Ala. L. Rev. 421, 423–424, 422– 

423 (1993).

In sum, the Teague decision limits the kinds of constitutional violations that will entitle an individual to relief on 

—————— 

17Today, the majority of state courts still read Teague this way. As 

far as we can tell, only three States—Minnesota, Oregon, and Montana—have adopted a contrary view. See Page, 336 Ore. 379, 84 P. 3d 

133; Egelhoff, 272 Mont. 114, 900 P. 2d 260. 
18 DANFORTH v. MINNESOTA 

Opinion of the Court 

federal habeas, but does not in any way limit the authority 

of a state court, when reviewing its own state criminal 

convictions, to provide a remedy for a violation that is

deemed “nonretroactive” under Teague. 

V 

The State contends that two of our prior decisions— 

Michigan v. Payne and American Trucking Assns., Inc. v. 

Smith—cast doubt on state courts’ authority to provide

broader remedies for federal constitutional violations than 

mandated by Teague. We disagree. 

A 

In Michigan v. Payne, 412 U. S. 47, we considered the 

retroactivity of the rule prohibiting “vindictive” resentencing that had been announced in our opinion in North 

Carolina v. Pearce, 395 U. S. 711, 723–726 (1969).18 Relying on the approach set forth in Linkletter and Stovall, we 

held that the Pearce rule did not apply because Payne’s

resentencing had occurred prior to Pearce’s date of decision.19 We therefore reversed the judgment of the Michigan Supreme Court, which had applied Pearce retroac-

—————— 

18 In Pearce, we held: 

“[W]henever a judge imposes a more severe sentence upon a defendant 

after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the 

time of the original sentencing proceeding. And the factual data upon

which the increased sentence is based must be made part of the record, 

so that the constitutional legitimacy of the increased sentence may be

fully reviewed on appeal.” 395 U. S., at 726. 

As the concurrence pointed out, some States already provided equivalent or broader protection against vindictive sentencing. See id., at 

733–734, n. 4 (opinion of Douglas, J.). 19Given the fact that Payne’s appeal was still pending on that date, 

however, the result would have been different and the views of the 

dissenting Justices would have prevailed if the case had been decided 

after our decision in Teague. 
Cite as: 552 U. S. ____ (2008) 19 

Opinion of the Court 

tively, and remanded for further proceedings. 

At first blush the fact that we reversed the judgment of

the Michigan court appears to lend support to the view

that state courts may not give greater retroactive effect to

new rules announced by this Court than we expressly 

authorize. But, as our opinion in Payne noted, the Michigan Supreme Court had applied the Pearce rule retroactively “‘pending clarification’” by this Court. 412 U. S., at 

49. As the Michigan Court explained, it had applied the

new rule in the case before it in order to give guidance to

Michigan trial courts concerning what it regarded as an

ambiguity in Pearce’s new rule.20 The Michigan Court did

not purport to make a definitive ruling on the retroactivity

of Pearce; nor did it purport to apply a broader state rule

of retroactivity than required by federal law. Our opinion

in Payne did not require the Michigan Supreme Court to

modify its disposition of the case; it simply remanded for 

further proceedings after providing the clarification that

the Michigan Court sought. Most significantly, other than 

—————— 

20The relevant footnote in the Michigan Supreme Court’s opinion 

explained:

“The United States Supreme Court has not yet decided whether Pearce 

is to be applied retroactively. Although the Court twice granted certiorari to consider the question, in each case the writ was subsequently

dismissed as improvidently granted. Moon v. Maryland, cert granted 

(1969), 395 US 975, writ dismissed (1970), 398 US 319; Odom v. United 

States, cert granted (1970), 399 US 904, writ dismissed (1970), 400 US 

23. We decline to predict the high Court’s answer to the question of 

Pearce’s retroactive or prospective application, but we will apply Pearce 

in the present case in order to instruct our trial courts as to the Michigan interpretation of an ambiguous portion of Pearce, discussed Infra, 

pending clarification by the United States Supreme Court.” People v. 

Payne, 386 Mich. 84, 90–91, n. 3, 191 N. W. 2d 375, 378, n. 2 (1971)

(citations omitted). See also Reply Brief for Petitioner in Michigan v. 

Payne, O. T. 1972, No. 71–1005, p. 4 (“People v Payne, 386 Mich 84, 

191 NW2d 375 (1971) expressly withheld ruling on the retroactivity

of Pearce but applied it to Payne to instruct the lower courts in 

Michigan”). 
20 DANFORTH v. MINNESOTA 

Opinion of the Court 

the fact that the case was remanded for further proceedings, not a word in our Payne opinion suggests that the

Court intended to prohibit state courts from applying new 

constitutional standards in a broader range of cases than 

we require.21 

Notably, at least some state courts continued, after 

Payne, to adopt and apply broader standards of retroactivity than required by our decisions. In Pennsylvania v. 

McCormick, 359 Pa. Super. 461, 470, 519 A. 2d 442, 447

(1986), for example, the Superior Court of Pennsylvania

chose not to follow this Court’s nonretroactivity holding in 

Allen v. Hardy, 478 U. S. 255 (1986) (per curiam). The 

Pennsylvania court correctly explained that our decision

was “not binding authority [in part] because neither the 

federal nor the state constitution dictate which decisions 

must be given retroactive effect.” 359 Pa. Super., at 470, 

519 A. 2d, at 447. 

B 

In American Trucking Assns., Inc. v. Smith, 496 U. S. 

167, petitioners challenged the constitutionality of an

Arkansas statute enacted in 1983 that imposed a discriminatory burden on interstate truckers. While their 

suit was pending, this Court declared a virtually identical

Pennsylvania tax unconstitutional. See American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266 (1987). Shortly 

thereafter, the Arkansas Supreme Court struck down the 

Arkansas tax at issue. The primary issue in Smith was 

whether petitioners were entitled to a refund of taxes that 

were assessed before the date of our decision in Scheiner. 

—————— 

21See American Trucking Assns., Inc. v. Smith, 496 U. S., at 210, n. 4 

(STEVENS, J., dissenting) (“Payne does not stand for the expansive 

proposition that federal law limits the relief a State may provide, but 

only for the more narrow proposition that a state court’s decision that 

a particular remedy is constitutionally required is itself a federal 

question”). 
Cite as: 552 U. S. ____ (2008) 21 

Opinion of the Court 

The Arkansas Court held that petitioners were not

entitled to a refund because our decision in Scheiner did 

not apply retroactively. Four Members of this Court 

agreed. The plurality opinion concluded that federal law 

did not provide petitioners with a right to a refund of preScheiner tax payments because Scheiner did not apply 

retroactively to invalidate the Arkansas tax prior to its

date of decision. Four Members of this Court dissented. 

The dissenting opinion argued that the case actually 

raised both the substantive question whether the tax 

violated the Commerce Clause of the Federal Constitution 

and the remedial question whether, if so, the petitioners

were entitled to a refund. The dissent concluded as a 

matter of federal law that the tax was invalid during the 

years before Scheiner, and that petitioners were entitled to 

a decision to that effect. Whether petitioners should get a 

refund, however, the dissent deemed a mixed question of 

state and federal law that should be decided by the state

court in the first instance. 

JUSTICE SCALIA concurred with the plurality’s judgment

because he disagreed with the substantive rule announced 

in Scheiner, but he did not agree with the plurality’s reasoning. After stating that his views on retroactivity diverged from the plurality’s “in a fundamental way,” 

JUSTICE SCALIA explained: 

“I share [the dissent’s] perception that prospective decisionmaking is incompatible with the judicial role, 

which is to say what the law is, not to prescribe what

[the law] shall be. The very framing of the issue that 

we purport to decide today—whether our decision in 

Scheiner shall ‘apply’ retroactively—presupposes a 

view of our decisions as creating the law, as opposed 

to declaring what the law already is. Such a view is 

contrary to that understanding of ‘the judicial Power,’ 

U. S. Const., Art. III, § 1, which is not only the com-
22 DANFORTH v. MINNESOTA 

Opinion of the Court 

mon and traditional one, but which is the only one

that can justify courts in denying force and effect to 

the unconstitutional enactments of duly elected legislatures, see Marbury v. Madison, 1 Cranch 137 

(1803)—the very exercise of judicial power asserted in 

Scheiner. To hold a governmental Act to be unconstitutional is not to announce that we forbid it, but that 

the Constitution forbids it; and when, as in this case, 

the constitutionality of a state statute is placed in issue, the question is not whether some decision of ours 

‘applies’ in the way that a law applies; the question is 

whether the Constitution, as interpreted in that decision, invalidates the statute. Since the Constitution 

does not change from year to year; since it does not

conform to our decisions, but our decisions are supposed to conform to it; the notion that our interpretation of the Constitution in a particular decision could

take prospective form does not make sense. Either 

enforcement of the statute at issue in Scheiner (which

occurred before our decision there) was unconstitutional, or it was not; if it was, then so is enforcement 

of all identical statutes in other States, whether occurring before or after our decision; and if it was not,

then Scheiner was wrong, and the issue of whether to 

‘apply’ that decision needs no further attention.” 

American Trucking Assns., Inc. v. Smith, 496 U. S., at 

201. 

Because JUSTICE SCALIA’s vote rested on his disagreement 

with the substantive rule announced in Scheiner—rather 

than with the retroactivity analysis in the dissenting 

opinion—there were actually five votes supporting the

dissent’s views on the retroactivity issue. Accordingly, it

is the dissent rather than the plurality that should inform 
Cite as: 552 U. S. ____ (2008) 23 

Opinion of the Court 

our analysis of the issue before us today.22 

Moreover, several years later, a majority of this Court

explicitly adopted the Smith dissent’s reasoning in Harper 

v. Virginia Dept. of Taxation, 509 U. S. 86 (1993). Harper, 

like Smith, involved a request for a refund of taxes paid 

before we declared a similar Michigan tax unconstitutional. We held that the Virginia tax at issue in Harper

was in fact invalid—even before we declared the similar 

tax unconstitutional—but that this did not necessarily

entitle the petitioners to a full refund. We explained that

the Constitution required Virginia to “‘provide relief consistent with federal due process principles,’” 509 U. S., at 

100 (citing American Trucking Assns., Inc. v. Smith, 496 

U. S., at 181), but that “‘a State found to have imposed an 

impermissibly discriminatory tax retains flexibility in 

responding to this determination’” under the due process 

clause, 509 U. S., at 100 (citing McKesson Corp. v. Division 

of Alcoholic Beverages and Tobacco, Fla. Dept. of Business 

Regulation, 496 U. S. 18, 39–40 (1990)). We left to the 

“Virginia courts this question of state law and the performance of other tasks pertaining to the crafting of any

appropriate remedy.” 509 U. S., at 102. And we specifically noted that Virginia “ ‘is free to choose which form of 

relief it will provide, so long as that relief satisfies the

minimum federal requirements we have outlined.’” Ibid. 

(citing McKesson, 496 U. S., at 51–52); see also 509 U. S.,

at 102 (“State law may provide relief beyond the demands 

of federal due process, but under no circumstances may it

confine petitioners to a lesser remedy” citations omitted)). 

Thus, to the extent that these civil retroactivity decisions are relevant to the issue before us today,23 they 

—————— 

22While the opinions discussed at great length our earlier cases raising retroactivity issues, none of them suggested that federal law would 

prohibit Arkansas from refunding the taxes at issue if it wanted to do 

so. 23The petitioners and the dissenters in American Trucking Assns., 
24 DANFORTH v. MINNESOTA 

Opinion of the Court 

support our conclusion that the remedy a state court

chooses to provide its citizens for violations of the Federal 

Constitution is primarily a question of state law. Federal 

law simply “sets certain minimum requirements that

States must meet but may exceed in providing appropriate

relief.” American Trucking Assns., Inc. v. Smith, 496 

U. S., at 178–179 (plurality opinion). They provide no 

support for the proposition that federal law places a limit 

on state authority to provide remedies for federal constitutional violations. 

VI 

Finally, while the State acknowledges that it may grant 

its citizens broader protection than the Federal Constitution requires by enacting appropriate legislation or by

judicial interpretation of its own Constitution, it argues

that it may not do so by judicial misconstruction of federal 

law. Oregon v. Hass, 420 U. S. 714 (1975)—like our early 

decisions in Ableman v. Booth, 21 How. 506 (1859), and 

Tarble’s Case, 13 Wall. 397 (1872)—provides solid support 

for that proposition. But the States that give broader

retroactive effect to this Court’s new rules of criminal 

—————— 

Inc. v. Smith relied heavily on separate opinions authored by Justice 

Harlan, and on the Court’s then-recent opinion in Griffith, 479 U. S. 

314, supporting the proposition that a new constitutional holding

should be applied not only in cases that had not yet been tried, but also

in all cases still pending on direct review. The plurality, however, 

declined to follow Griffith because of its view that “there are important

distinctions between the retroactive application of civil and criminal

decisions that make the Griffith rationale far less compelling in the 

civil sphere.” 496 U. S., at 197. While Justice Harlan would probably

disagree with the suggestion that the distinction between civil and 

criminal cases provided an acceptable basis for refusing to follow 

Griffith in the American Trucking Assns., Inc. v. Smith litigation, see 

Mackey, 401 U. S., at 683, n. 2 (opinion concurring in judgments in part

and dissenting in part), if relevant, that same distinction would make it

appropriate to disregard the plurality’s opinion in American Trucking 

Assns., Inc. v. Smith in this case. 
Cite as: 552 U. S. ____ (2008) 25 

Opinion of the Court 

procedure do not do so by misconstruing the federal 

Teague standard. Rather, they have developed state law 

to govern retroactivity in state postconviction proceedings. 

See, e.g., State v. Whitfield, 107 S. W. 3d 253, 268 (Mo. 

2003) (“[A]s a matter of state law, this Court chooses not 

to adopt the Teague analysis . . .”). The issue in this case 

is whether there is a federal rule, either implicitly announced in Teague, or in some other source of federal law, 

that prohibits them from doing so.

The absence of any precedent for the claim that Teague 

limits state collateral review courts’ authority to provide 

remedies for federal constitutional violations is a sufficient 

reason for concluding that there is no such rule of federal

law. That conclusion is confirmed by several additional 

considerations. First, if there is such a federal rule of law, 

presumably the Supremacy Clause in Article V of the

Federal Constitution would require all state entities—not

just state judges—to comply with it. We have held that 

States can waive a Teague defense, during the course of 

litigation, by expressly choosing not to rely on it, see 

Collins v. Youngblood, 497 U. S. 37, 41 (1990), or by failing to raise it in a timely manner, see Schiro v. Farley, 510 

U. S. 222, 228–229 (1994). It would indeed be anomalous 

to hold that state legislatures and executives are not 

bound by Teague, but that state courts are. 

Second, the State has not identified, and we cannot 

discern, the source of our authority to promulgate such a

novel rule of federal law. While we have ample authority 

to control the administration of justice in the federal 

courts—particularly in their enforcement of federal legislation—we have no comparable supervisory authority over

the work of state judges. Johnson v. Fankell, 520 U. S. 

911 (1997). And while there are federal interests that 

occasionally justify this Court’s development of common-
26 DANFORTH v. MINNESOTA 

Opinion of the Court 

law rules of federal law,24 our normal role is to interpret 

law created by others and “not to prescribe what it shall 

be.” American Trucking Assns., Inc. v. Smith, 496 U. S., at 

201 (SCALIA, J., concurring in judgment). Just as constitutional doubt may tip the scales in favor of one construction

of a statute rather than another, so does uncertainty about

the source of authority to impose a federal limit on the 

power of state judges to remedy wrongful state convictions

outweigh any possible policy arguments favoring the rule

that respondent espouses. 

Finally, the dissent contends that the “end result [of this 

opinion] is startling” because “two criminal defendants, 

each of whom committed the same crime, at the same 

time, whose convictions became final on the same day, and

each of whom raised an identical claim at the same time 

under the Federal Constitution” could obtain different 

results. Post, at 1. This assertion ignores the fact that the 

two hypothetical criminal defendants did not actually 

commit the “same crime.” They violated different state 

laws, were tried in and by different state sovereigns, and 

may—for many reasons—be subject to different penalties. 

As previously noted, such nonuniformity is a necessary 

consequence of a federalist system of government. 

VII 

It is important to keep in mind that our jurisprudence

concerning the “retroactivity” of “new rules” of constitutional law is primarily concerned, not with the question

whether a constitutional violation occurred, but with the 

—————— 

24See Boyle v. United Technologies Corp., 487 U. S. 500, 504 (1988) 

(“[W]e have held that a few areas, involving ‘uniquely federal interests,’ 

are so committed by the Constitution and laws of the United States to

federal control that state law is pre-empted and replaced, where necessary, by federal law of a content prescribed . . . by the courts—so-called 

‘federal common law’ ” (citation omitted)); United States v. Kimbell 

Foods, Inc., 440 U. S. 715 (1979); Banco Nacional de Cuba v. Sabbatino, 

376 U. S. 398 (1964). 
Cite as: 552 U. S. ____ (2008) 27 

Opinion of the Court 

availability or nonavailability of remedies. The former is a 

“pure question of federal law, our resolution of which

should be applied uniformly throughout the Nation, while

the latter is a mixed question of state and federal law.” 

American Trucking Assns., Inc. v. Smith, 496 U. S., at 205 

(STEVENS, J., dissenting). 

A decision by this Court that a new rule does not apply 

retroactively under Teague does not imply that there was

no right and thus no violation of that right at the time of

trial—only that no remedy will be provided in federal

habeas courts. It is fully consistent with a government of

laws to recognize that the finality of a judgment may bar

relief. It would be quite wrong to assume, however, that

the question whether constitutional violations occurred in

trials conducted before a certain date depends on how 

much time was required to complete the appellate process. 

Accordingly, the judgment of the Supreme Court of

Minnesota is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. As 

was true in Michigan v. Payne, the Minnesota Court is 

free to reinstate its judgment disposing of the petition for 

state postconviction relief. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 552 U. S. ____ (2008) 1 

ROBERTS, C. J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 06–8273 

STEPHEN DANFORTH, PETITIONER v. MINNESOTA 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

MINNESOTA

[February 20, 2008] 

CHIEF JUSTICE ROBERTS, with whom JUSTICE KENNEDY 

joins, dissenting. 

Some of our new rulings on the meaning of the United 

States Constitution apply retroactively—to cases already 

concluded—and some do not. This Court has held that the 

question whether a particular ruling is retroactive is itself 

a question of federal law. It is basic that when it comes to 

any such question of federal law, it is “the province and

duty” of this Court “to say what the law is.” Marbury v. 

Madison, 1 Cranch 137, 177 (1803). State courts are the 

final arbiters of their own state law; this Court is the final 

arbiter of federal law. State courts are therefore bound by

our rulings on whether our cases construing federal law 

are retroactive. 

The majority contravenes these bedrock propositions. 

The end result is startling: Of two criminal defendants,

each of whom committed the same crime, at the same 

time, whose convictions became final on the same day, and

each of whom raised an identical claim at the same time 

under the Federal Constitution, one may be executed

while the other is set free—the first despite being correct 

on his claim, and the second because of it. That result is 

contrary to the Supremacy Clause and the Framers’ decision to vest in “one supreme Court” the responsibility and 

authority to ensure the uniformity of federal law. Because 

the Constitution requires us to be more jealous of that 
2 DANFORTH v. MINNESOTA 

ROBERTS, C. J., dissenting 

responsibility and authority, I respectfully dissent. 

I 

One year after Teague v. Lane, 489 U. S. 288 (1989)—

our leading modern precedent on retroactivity—Teague’s 

author explained: 

“The determination whether a constitutional decision of this Court is retroactive . . . is a matter of federal law. When questions of state law are at issue,

state courts generally have the authority to determine 

the retroactivity of their own decisions. The retroactive applicability of a constitutional decision of this

Court, however, ‘is every bit as much of a federal 

question as what particular federal constitutional 

provisions themselves mean, what they guarantee,

and whether they have been denied.’” American 

Trucking Assns., Inc. v. Smith, 496 U. S. 167, 177–178 

(1990) (plurality opinion of O’Connor, J.) (quoting 

Chapman v. California, 386 U. S. 18, 21 (1967); citation omitted)). 

For that reason, “we have consistently required that state 

courts adhere to our retroactivity decisions.” 496 U. S., at 

178 (citing Michigan v. Payne, 412 U. S. 47 (1973), and 

Arsenault v. Massachusetts, 393 U. S. 5 (1968) (per curiam)). Even more recently, we held that the “Supremacy

Clause does not allow federal retroactivity doctrine to be 

supplanted by the invocation of a contrary approach to 

retroactivity under state law.” Harper v. Virginia Dept. of 

Taxation, 509 U. S. 86, 100 (1993) (citation omitted). 

Indeed, about the only point on which our retroactivity

jurisprudence has been consistent is that the retroactivity

of new federal rules is a question of federal law binding on 

States. The Court’s contrary holding is based on a misreading of our precedent and a misunderstanding of the

nature of retroactivity generally. 
Cite as: 552 U. S. ____ (2008) 3 

ROBERTS, C. J., dissenting 

A 

As the Court correctly points out, before 1965 we took 

for granted the proposition that all federal constitutional 

rights, including rights that represented a break from

earlier precedent, would be given full retroactive effect on

both direct and collateral review. That all changed with 

Linkletter v. Walker, 381 U. S. 618 (1965). In that case, a 

Louisiana prisoner brought a federal habeas petition

arguing that illegally seized evidence was introduced 

against him at trial in violation of Mapp v. Ohio, 367 U. S. 

643 (1961). Mapp, however, had been decided after his 

conviction became final. We granted certiorari to decide 

whether the Mapp rule “operates retrospectively upon

cases finally decided in the period prior to Mapp.” 381 

U. S., at 619–620. In answering this question, we broke 

from our past practice of assuming full retroactivity, holding that “we are neither required to apply, nor prohibited

from applying, a decision retrospectively.” Id., at 629. 

Our analysis turned entirely on the nature and scope of 

the particular constitutional right at issue: “[W]e must . . . 

weigh the merits and demerits [of retroactive application]

in each case by looking to the prior history of the rule in

question, its purpose and effect, and whether retrospective

operation will further or retard its operation.” Ibid. Under this framework, we held that Mapp would apply only 

prospectively. 381 U. S., at 639–640. 

The next year, we decided Johnson v. New Jersey, 384 

U. S. 719 (1966). Johnson was a direct appeal from the

New Jersey Supreme Court’s denial of state collateral 

relief. The precise question in Johnson was whether the 

rules announced in Escobedo v. Illinois, 378 U. S. 478 

(1964), and Miranda v. Arizona, 384 U. S. 436 (1966),

would apply to state prisoners whose convictions had

become final before those cases were decided. In holding

that Escobedo and Miranda should apply only prospectively, 384 U. S., at 732, we imported Linkletter’s mode of 
4 DANFORTH v. MINNESOTA 

ROBERTS, C. J., dissenting 

retroactivity analysis into review of state postconviction

proceedings, 384 U. S., at 726–727. Finally, in Stovall v. 

Denno, 388 U. S. 293 (1967), we announced that, for purposes of retroactivity analysis, “no distinction is justified

between convictions now final, as in the instant case, and 

convictions at various stages of trial and direct review.” 

Id., at 300. 

Thus, by 1967, the Linkletter analysis was applied in

review of criminal convictions, whether final or not. No 

matter at what stage of proceedings this Court considered 

a retroactivity question, the issue was decided with reference to the purposes and practical impact of the precise 

federal right in question: “Each constitutional rule of 

criminal procedure has its own distinct functions, its own

background of precedent, and its own impact on the administration of justice, and the way in which these factors 

combine [to decide the retroactivity issue] must inevitably

vary with the [constitutional] dictate involved.” Johnson, 

supra, at 728. 

Because the question of retroactivity was so tied up with

the nature and purpose of the underlying federal constitutional right, it would have been surprising if any of our 

cases had suggested that States were free to apply new 

rules of federal constitutional law retroactively even when

we would not. As one of the more thoughtful legal scholars put it in discussing the effect of the Linkletter analysis 

on state collateral review, “[i]f a state gave relief in such a 

case on the exclusive authority of Mapp, under the rationale of the Linkletter opinion it would presumably have 

been reversed.” Mishkin, Foreword: The High Court, The

Great Writ, and the Due Process of Time and Law, 79 

Harv. L. Rev. 56, 91, n. 132 (1965). 

Our precedents made clear that States could give

greater substantive protection under their own laws than

was available under federal law, and could give whatever 

retroactive effect to those laws they wished. As the Court 
Cite as: 552 U. S. ____ (2008) 5 

ROBERTS, C. J., dissenting 

explained in Johnson, “[o]f course, States are still entirely

free to effectuate under their own law stricter standards 

than those we have laid down and to apply those standards in a broader range of cases than is required by this

decision.” 384 U. S., at 733. The clear implication of this 

statement was that States could apply their own retroactivity rules only to new substantive rights “under their

own law,” not to new federal rules announced by this

Court. 

Thus, contrary to the Court’s view, our early retroactivity cases nowhere suggested that the retroactivity of new 

federal constitutional rules of criminal procedure was

anything other than “a matter of federal law.” Daniel v. 

Louisiana, 420 U. S. 31, 32 (1975) (per curiam). It is no 

surprise, then, that when we held that a particular right

would not apply retroactively, the language in our opinions did not indicate that our decisions were optional. See, 

e.g., Fuller v. Alaska, 393 U. S. 80, 81 (1968) (per curiam) 

(the rule announced in Lee v. Florida, 392 U. S. 378 

(1968), “is to be applied only to trials in which the evidence 

is sought to be introduced after the date of [that] decision”

(emphasis added)). And, of course, when we found that a 

state court erred in holding that a particular right should

not apply retroactively, the state court was bound to comply. See, e.g., Kitchens v. Smith, 401 U. S. 847 (1971) (per 

curiam); McConnell v. Rhay, 393 U. S. 2, 3–4 (1968) (per 

curiam); Arsenault v. Massachusetts, 393 U. S. 5, 6 (1968) 

(per curiam). 

Although nothing in our decisions suggested that state

courts could determine the retroactivity of new federal

rules according to their own lights, we had no opportunity

to confront the issue head on until Michigan v. Payne, 412 

U. S. 47 (1973).1 In Payne, the defendant had argued 

—————— 

1 Payne came to us on direct appeal, but as noted, supra, at 4, we did 

not at the time distinguish between direct appeal and collateral review 
6 DANFORTH v. MINNESOTA 

ROBERTS, C. J., dissenting 

before the Michigan Supreme Court that his resentencing

violated the rule we had announced in North Carolina v. 

Pearce, 395 U. S. 711 (1969). In considering this question,

the state court noted that this Court had “not yet decided 

whether Pearce is to be applied retroactively.” People v. 

Payne, 386 Mich. 84, 90, n. 3, 191 N. W. 2d 375, 378, n. 2 

(1971). Nevertheless, without so much as citing any federal retroactivity precedent, the court decided that it

would “apply Pearce in the present case in order to instruct our trial courts as to the Michigan interpretation of

an ambiguous portion of Pearce . . . , pending clarification 

by the United States Supreme Court.” Id., at 91, n. 3, 191 

N. W. 2d, at 378, n. 2. 

We granted certiorari in Payne only on the question of 

retroactivity, and decided that Pearce should not apply 

retroactively. In reversing the contrary decision of the 

state court, our language was not equivocal: “Since the

resentencing hearing in this case took place approximately 

two years before Pearce was decided, we hold that the 

Michigan Supreme Court erred in applying its proscriptions here.” 412 U. S., at 57. 

The majority argues that Payne did not preclude States

from applying retroactivity rules different from those we 

announced; rather, the argument goes, the Michigan 

Supreme Court simply elected to follow the federal retroactivity rule, “pending clarification.” See ante, at 18–20. 

That is certainly a possible reading of Payne, but not the 

most plausible one. The Michigan Supreme Court did not

purport to rest its decision to apply Pearce retroactively on 

the federal Linkletter analysis, and this Court’s reversal is 

most reasonably read as requiring state courts to apply 

our federal retroactivity decisions. Notably, this is not the

first time Members of this Court have debated the meaning of Payne, with Teague’s author explaining that Payne 

—————— 

for purposes of retroactivity. 
Cite as: 552 U. S. ____ (2008) 7 

ROBERTS, C. J., dissenting 

supports the proposition that “we have consistently required that state courts adhere to our retroactivity decisions,” American Trucking, 496 U. S., at 178 (plurality 

opinion of O’Connor, J.), and the author of today’s opinion 

disagreeing in dissent, see id., at 210, n. 4 (opinion of 

STEVENS, J.). But whichever way Payne is read, it either 

offers no support for the majority’s position, because the 

state court simply applied federal retroactivity rules, or

flatly rejects the majority’s position, because the state 

court failed to apply federal retroactivity rules, and was 

told by this Court that it must. 

Meanwhile, Justice Harlan had begun dissenting in our 

retroactivity cases, pressing the view that new rules announced by the Court should be applied in all cases not yet 

final, without regard to the analysis set forth in Linkletter. 

See Desist v. United States, 394 U. S. 244, 256–269 (1969); 

Mackey v. United States, 401 U. S. 667, 675–702 (1971) 

(opinion concurring in judgments in part and dissenting in

part). In Griffith v. Kentucky, 479 U. S. 314 (1987), we 

abandoned Linkletter as it applied to cases still on direct

review and adopted Justice Harlan’s view in such cases.

Noting that nonretroactivity on direct appeal “violates 

basic norms of constitutional adjudication” and that “selective application of new rules violates the principle of

treating similarly situated defendants the same,” 479

U. S., at 322, 323, we held that “a new rule for the conduct 

of criminal prosecutions is to be applied retroactively to all 

cases, state or federal, pending on direct review or not yet 

final,” id., at 328 (emphasis added). Just as in previous 

cases, Griffith by its terms bound state courts to apply our 

retroactivity decisions. 

 Two years after Griffith was decided, we granted certiorari in Yates v. Aiken, 484 U. S. 211 (1988). In that case, a 

South Carolina state habeas court had decided that our 

decision in Francis v. Franklin, 471 U. S. 307 (1985), 

should not be applied retroactively. If the authority of 
8 DANFORTH v. MINNESOTA 

ROBERTS, C. J., dissenting 

state courts to apply their own retroactivity rules were 

well established under our precedents—as the majority 

would have it, see ante, at 6–12—this case should have 

been easily decided on the ground that whatever the federal retroactivity rule, the State could adopt its own rule 

on the retroactivity of newly announced federal constitutional standards. 

Instead, the State argued to this Court “that we should

adopt Justice Harlan’s theory that a newly announced 

constitutional rule should not be applied retroactively to

cases pending on collateral review unless” the rule meets 

certain criteria—the flip side of Justice Harlan’s view 

about cases on direct review that we had accepted in 

Griffith. 484 U. S., at 215. Under that approach, the 

State argued, Francis would not be applied retroactively 

on collateral review. 484 U. S., at 215. In response, we

discussed Justice Harlan’s “distinction between direct 

review and collateral review.” Ibid. We found, however, 

that it was “not necessary to determine whether we should

. . . adopt Justice Harlan’s reasoning as to the retroactivity

of cases announcing new constitutional rules to cases

pending on collateral review,” id., at 215–216, because 

Francis did not announce a new rule. 

This Court went on, however, to address South Carolina’s alternative argument—that it “has the authority to 

establish the scope of its own habeas corpus proceedings,” 

which would allow it in the case before the Court “to refuse to apply a new rule of federal constitutional law

retroactively in such a proceeding.” 484 U. S., at 217. 

This argument should sound familiar—whatever the

federal retroactivity rule, a State may establish its own

retroactivity rule for its own collateral proceedings. This 

Court rejected that proposition, not only because it did not 

regard Francis as a new rule, but also because the state 

court did not “plac[e] any limit on the issues that it will 

entertain in collateral proceedings.” 484 U. S., at 218. As 
Cite as: 552 U. S. ____ (2008) 9 

ROBERTS, C. J., dissenting 

this Court explained, if the state court “consider[s] the 

merits of the federal claim, it has a duty to grant the relief 

that federal law requires.” Ibid. (emphasis added).

Given all this, the present case should come out the way

it does only if Teague changed the nature of retroactivity 

as a creature of federal law binding on the States, and 

adopted the argument rejected in Yates—that when it 

comes to retroactivity, a State “has the authority to establish the scope of its own habeas corpus proceedings.” 

Teague did no such thing. 

B 

In Teague, we completed the project of conforming our 

view on the retroactivity of new rules of criminal procedure to those of Justice Harlan. Justice O’Connor’s plurality opinion posed the problem by noting, with more

than a bit of understatement, that the “Linkletter retroactivity standard has not led to consistent results.” 489 

U. S., at 302. In light of these concerns, and because of

“ ‘the important distinction between direct review and 

collateral review,’” id., at 307 (quoting Yates, supra, at 

215), we generally adopted Justice Harlan’s approach to

retroactivity on collateral review, 489 U. S., at 310, just 

as we had previously adopted his approach on direct 

review in Griffith. 

The Linkletter approach to retroactivity was thus overruled in favor of the Harlan approach in two steps: Griffith 

and Teague. There is no dispute that Griffith is fully 

binding on States; a new rule “is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” 479 U. S., at 328 (emphasis added). 

Teague is simply the other side of the coin, and it too 

should be binding in “all cases, state or federal.” The fact 

that Linkletter was overruled in two stages rather than 

one should not lead to a different result. 

Indeed, Teague did not purport to distinguish between 
10 DANFORTH v. MINNESOTA 

ROBERTS, C. J., dissenting 

federal and state collateral review. Justice O’Connor’s 

opinion noted that “in Yates v. Aiken, we were asked to 

decide whether the rule announced in Francis v. Franklin, 

should be applied to a defendant on collateral review at 

the time that case was decided,” but that we were able to 

decide the case on alternative grounds. 489 U. S., at 307 

(citations omitted). This citation of Yates—a state habeas 

case—makes clear that Teague contemplated no difference 

between retroactivity of new federal rules in state and

federal collateral proceedings. Thus, our unqualified

holding—that “[u]nless they fall within an exception to the

general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have

become final before the new rules are announced,” 489 

U. S., at 310—is enough to decide this case. 

Moreover, the reasons the Teague Court provided for 

adopting Justice Harlan’s view apply to state as well as 

federal collateral review. The majority is quite right that 

Teague invoked the interest in comity between the state

and federal sovereigns. Id., at 308. But contrary to the 

impression conveyed by the majority, there was more to 

Teague than that. Teague also relied on the interest in 

finality: “Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the

operation of our criminal justice system. Without finality,

the criminal law is deprived of much of its deterrent effect.” Id., at 309. The Court responds by flatly stating

that “finality of state convictions is a state interest, not a 

federal one.” Ante, at 15. But while it is certainly true

that finality of state convictions is a state interest, that 

does mean it is not also a federal one. After all, our decision in Griffith made finality the touchstone for retroactivity of new federal rules, and bound States to that judgment. See 479 U. S., at 328 (new rules are “to be applied 

retroactively to all cases, state or federal, pending on direct 
Cite as: 552 U. S. ____ (2008) 11 

ROBERTS, C. J., dissenting 

review or not yet final” (emphasis added)). 

It is quite a radical proposition to assert that this Court

has nothing to say about an interest “essential to the

operation of our criminal justice system,” without which 

“the criminal law is deprived of much of its deterrent

effect,” when the question is whether this interest is being

undermined by the very rules of federal constitutional 

procedure that we are charged with expounding. A State 

alone may “evaluate, and weigh the importance of” finality 

interests, ante, at 15, when it decides which substantive 

rules of criminal procedure state law affords; it is quite a 

leap to hold, as the Court does, that they alone can do so 

in the name of the Federal Constitution. 

Teague was also based on the inequity of the Linkletter 

approach to retroactivity. After noting that the disparate

treatment of similarly situated defendants led us in Griffith to adopt Justice Harlan’s view for cases on direct

appeal, the Court then explained that the “Linkletter 

standard also led to unfortunate disparity in the treatment of similarly situated defendants on collateral review.” 489 U. S., at 305. See also id., at 316 (the Court’s

new approach to retroactivity “avoids the inequity resulting from the uneven application of new rules to similarly 

situated defendants”).

This interest in reducing the inequity of haphazard

retroactivity standards and disuniformity in the application of federal law is quite plainly a predominantly federal

interest. Indeed, it was one of the main reasons we cited 

in Griffith for imposing a uniform rule of retroactivity 

upon state courts for cases on direct appeal. And, more to 

the point, it is the very interest that animates the Supremacy Clause and our role as the “one supreme Court” 

charged with enforcing it. 

Justice Story, writing for the Court, noted nearly two

centuries ago that the Constitution requires “uniformity of 

decisions throughout the whole United States, upon all 
12 DANFORTH v. MINNESOTA 

ROBERTS, C. J., dissenting 

subjects within [its] purview.” Martin v. Hunter’s Lessee, 

1 Wheat. 304, 347–348 (1816). Indeed, the “fundamental 

principle” of our Constitution, as Justice O’Connor once 

put it, is “that a single sovereign’s law should be applied 

equally to all.” Our Judicial Federalism, 35 Case W. Res. 

L. Rev. 1, 4 (1985). States are free to announce their own 

state-law rules of criminal procedure, and to apply them

retroactively in whatever manner they like. That is fully

consistent with the principle that “a single sovereign’s law 

should be applied equally to all.” But the Court’s opinion

invites just the sort of disuniformity in federal law that

the Supremacy Clause was meant to prevent. The same 

determination of a federal constitutional violation at the 

same stage in the criminal process can result in freedom

in one State and loss of liberty or life in a neighboring 

State.2 The Court’s opinion allows “a single sovereign’s 

law”—the Federal Constitution, as interpreted by this

Court—to be applied differently in every one of the several 

—————— 

2The Court points out that the defendants in such a case are differently situated because they violated the laws of and were tried in

different States. Ante, at 26. But disparate treatment under substantively different state laws is something we expect in our federal system;

disparate treatment under the same Federal Constitution is quite a

different matter. 

The majority also points out that the rule announced in Griffith v. 

Kentucky, 479 U. S. 314 (1987)—that full retroactive application ends

with the conclusion of direct appeal—creates its own disuniformity, 

because finality turns on how quickly a State brings its direct appeals

to a close. Ante, at 27. The same point was raised by the Griffith 

dissenters, 479 U. S., at 331–332 (opinion of White, J.), and rejected as

pertinent by the majority in that case, id., at 327–328. The disuniformity that the majority emphasizes today and the dissenters emphasized in Griffith is a necessary consequence of our having chosen a

relatively clear rule—finality—to delineate the line between full retroactivity and presumptive nonretroactivity. The relevant point is that 

whatever inequity arises from the Griffith rule, it is based on a balancing of costs and benefits that this Court—not 50 different sovereigns— 

has performed. 
Cite as: 552 U. S. ____ (2008) 13 

ROBERTS, C. J., dissenting 

States. 

 Finally, from Linkletter through Johnson to Teague, we 

have always emphasized that determining whether a new

federal right is retroactive turns on the nature of the 

substantive federal rule at issue. See Linkletter, 381 U. S., 

at 629 (in deciding retroactivity, we “loo[k] to the prior 

history of the rule in question, its purpose and effect, and 

whether retrospective operation will further or retard its

operation”); Johnson, 384 U. S., at 728 (“Each constitutional rule of criminal procedure has its own distinct 

functions, its own background of precedent, and its own

impact on the administration of justice, and the way in

which these factors combine [to decide the retroactivity

issue] must inevitably vary with the dictate involved”); 

Teague, supra, at 311–315 (deciding whether rule is applicable to cases on collateral review turns on whether the 

rule “places ‘certain kinds of primary, private individual

conduct beyond the power of the criminal law-making

authority to proscribe,’ ” and whether the rule is an “absolute prerequisite to fundamental fairness that is ‘implicit

in the concept of ordered liberty’”). That is how we determine retroactivity—by carefully examining the underlying

federal right. See, e.g., Whorton v. Bockting, 549 U. S. ___, 

___–___ (2007) (slip op., at 11–14); Schriro v. Summerlin, 

542 U. S. 348, 353–354 (2004); Sawyer v. Smith, 497 U. S. 

227, 243–245 (1990); Penry v. Lynaugh, 492 U. S. 302, 

318–319 (1989).

When this Court decides that a particular right shall not

be applied retroactively, but a state court finds that it 

should, it is at least in part because of a different assessment by the state court of the nature of the underlying

federal right—something on which the Constitution gives

this Court the final say. The nature and scope of the new 

rules we announce directly determines whether they will

be applied retroactively on collateral review. Today’s 

opinion stands for the unfounded proposition that while 
14 DANFORTH v. MINNESOTA 

ROBERTS, C. J., dissenting 

we alone have the final say in expounding the former, we

have no control over the latter. 

II 

The Court’s holding is not only based on a misreading of 

our retroactivity cases, but also on a misunderstanding of 

the nature of retroactivity generally. The majority’s decision is grounded on the erroneous view that retroactivity 

is a remedial question. See ante, at 26–27 (“It is important to keep in mind that our jurisprudence concerning the 

‘retroactivity’ of ‘new rules’ of constitutional law is primarily concerned, not with the question whether a constitutional violation occurred, but with the availability or 

nonavailability of remedies”). But as explained in the lead 

opinion in American Trucking—penned by the author of 

the lead opinion in Teague—it is an “error” to “equat[e] a 

decision not to apply a rule retroactively with the judicial

choice of a remedy.” 496 U. S., at 194 (plurality opinion of 

O’Connor, J.). As Justice O’Connor went on to emphasize,

“[n]or do this Court’s retroactivity decisions, whether in 

the civil or criminal sphere, support the . . . assertion that

our retroactivity doctrine is a remedial principle.” Ibid. 

“While application of the principles of retroactivity may 

have remedial effects, they are not themselves remedial

principles. . . . A decision defining the operative conduct or 

events that will be adjudicated under old law does not, in 

itself, specify an appropriate remedy.” Id., at 195. See 

also Lemon v. Kurtzman, 411 U. S. 192, 199 (1973) (plurality opinion) (describing the question of retroactivity as

“whether we will apply a new constitutional rule of criminal law in reviewing judgments of conviction obtained 

under a prior standard,” and contrasting this with the 

question of the “appropriate scope of federal equitable

remedies”).

In other words, when we ask whether and to what extent a rule will be retroactively applied, we are asking 
Cite as: 552 U. S. ____ (2008) 15 

ROBERTS, C. J., dissenting 

what law—new or old—will apply. As we have expressly 

noted, “[t]he Teague doctrine . . . does not involve a special

‘remedial’ limitation on the principle of ‘retroactivity’ as 

much as it reflects a limitation inherent in the principle

itself.” Reynoldsville Casket Co. v. Hyde, 514 U. S. 749, 

758 (1995).

The foregoing prompts a lengthy rejoinder from the

Court, to the effect that it is wrong to view retroactivity as

a federal choice-of-law question rather than a remedial 

one. That view, we are told, was rejected by five Justices 

in American Trucking and then by the Court in Harper. 

Ante, at 20–24. But the proposition on which five Members of the Court agreed in American Trucking, and that 

the Court adopted in Harper, was that the Griffith rule of 

retroactivity—that is, that newly announced constitutional decisions should apply to all cases on direct review—should apply to civil cases as well as criminal. See 

American Trucking, 496 U. S., at 201 (SCALIA, J., concurring in judgment) (“I share JUSTICE STEVENS’ perception

that prospective decisionmaking is incompatible with the 

judicial role, which is to say what the law is, not to prescribe what it shall be”); id., at 212 (STEVENS, J., dissenting) (“Fundamental notions of fairness and legal process

dictate that the same rules should be applied to all similar

cases on direct review”); Harper, 509 U. S., at 97 (“When

this Court applies a rule of federal law to the parties

before it, that rule is the controlling interpretation of

federal law and must be given full retroactive effect in all

cases still open on direct review”).

Neither JUSTICE SCALIA’s concurrence in American 

Trucking combined with the dissent, nor the Court’s opinion in Harper, resolved that retroactivity was a remedial 

question. That is why, the year after American Trucking 

was decided, two of the Justices in today’s majority could 

explain: 
16 DANFORTH v. MINNESOTA 

ROBERTS, C. J., dissenting 

“Since the question is whether the court should apply

the old rule or the new one, retroactivity is properly

seen in the first instance as a matter of choice of law, 

‘a choice . . . between the principle of forward operation and that of relation backward.’ Great Northern 

R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 

364 (1932). Once a rule is found to apply ‘backward,’ 

there may then be a further issue of remedies, i.e., 

whether the party prevailing under a new rule should

obtain the same relief that would have been awarded 

if the rule had been an old one. Subject to possible

constitutional thresholds, the remedial inquiry is one 

governed by state law, at least where the case originates in state court. See American Trucking Assns., 

Inc. v. Smith, 496 U. S. 167, 210 (1990) (STEVENS, J., 

dissenting). But the antecedent choice-of-law question 

is a federal one where the rule at issue itself derives 

from federal law, constitutional or otherwise. See 

Smith, supra, at 177–178 (plurality opinion).” James 

B. Beam Distilling Co. v. Georgia, 501 U. S. 529, 534– 

535 (1991) (opinion of SOUTER, J., joined by STEVENS, 

J.) (citation omitted; emphasis added). 

And Harper certainly did not view the retroactivity of

federal rules as a remedial question for state courts.

Quite the contrary: Harper held that the “Supremacy

Clause does not allow federal retroactivity doctrine to be 

supplanted by the invocation of a contrary approach to 

retroactivity under state law,” 509 U. S., at 100 (citation

omitted), and expressly treated retroactivity and remedy

as separate questions, id., at 100–102. 

The majority explains that when we announce a new 

rule of law, we are not “‘creating the law,’” but rather 

“‘declaring what the law already is.’” Ante, at 21 (quoting 

American Trucking, supra, at 201 (SCALIA, J., concurring 

in judgment)). But this has nothing to do with the ques-
Cite as: 552 U. S. ____ (2008) 17 

ROBERTS, C. J., dissenting 

tion before us. The point may lead to the conclusion that 

nonretroactivity of our decisions is improper—the position

the Court has adopted in both criminal and civil cases on 

direct review—but everyone agrees that full retroactivity

is not required on collateral review. It necessarily follows

that we must choose whether “new” or “old” law applies to

a particular category of cases. Suppose, for example, that

a defendant, whose conviction became final before we 

announced our decision in Crawford v. Washington, 541 

U. S. 36 (2004), argues (correctly) on collateral review that

he was convicted in violation of both Crawford and Ohio v. 

Roberts, 448 U. S. 56 (1980), the case that Crawford overruled. Under our decision in Whorton v. Bockting, 549 

U. S. ___ (2007), the “new” rule announced in Crawford 

would not apply retroactively to the defendant. But I take 

it to be uncontroversial that the defendant would nevertheless get the benefit of the “old” rule of Roberts, even 

under the view that the rule not only is but always has 

been an incorrect reading of the Constitution. See, e.g., 

Yates, 484 U. S., at 218. Thus, the question whether a

particular federal rule will apply retroactively is, in a very

real way, a choice between new and old law. The issue in 

this case is who should decide. 

The proposition that the question of retroactivity—that

is, the choice between new or old law in a particular case—

is distinct from the question of remedies has several important implications for this case. To begin with, whatever intuitive appeal may lie in the majority’s statement 

that “the remedy a state court chooses to provide its citizens for violations of the Federal Constitution is primarily 

a question of state law,” ante, at 24, the statement misses 

the mark. The relevant inquiry is not about remedy; it is 

about choice of law—new or old. There is no reason to 

believe, either legally or intuitively, that States should

have any authority over this question when it comes to 

which federal constitutional rules of criminal procedure to 
18 DANFORTH v. MINNESOTA 

ROBERTS, C. J., dissenting 

apply.3 

Indeed, when the question is what federal rule of decision from this Court should apply to a particular case, no 

Court but this one—which has the ultimate authority “to 

say what the law is,” Marbury, 1 Cranch, at 177—should 

have final say over the answer. See Harper, supra, at 100 

(“Supremacy Clause does not allow federal retroactivity

doctrine to be supplanted by the invocation of a contrary

approach to retroactivity under state law” (citation omitted)). This is enough to rebut the proposition that there is 

no “source of [our] authority” to bind state courts to follow 

our retroactivity decisions. Ante, at 26. Retroactivity is a

question of federal law, and our final authority to construe

it cannot, at this point in the Nation’s history, be reasonably doubted.

Principles of federalism protect the prerogative of States 

to extend greater rights under their own laws than are

available under federal law. The question here, however,

is the availability of protection under the Federal Constitution—specifically, the Confrontation Clause of the Sixth

Amendment. It is no intrusion on the prerogatives of the

States to recognize that it is for this Court to decide such a

question of federal law, and that our decision is binding on 

the States under the Supremacy Clause.

Consider the flip side of the question before us today: If

a State interprets its own constitution to provide protection beyond that available under the Federal Constitution, 

and has ruled that this interpretation is not retroactive, 

—————— 

3A federal court applying state law under Erie R. Co. v. Tompkins, 

304 U. S. 64 (1938), follows state choice-of-law rules as well, see Klaxon 

Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487, 496 (1941). It is not free to 

follow its own federal rule simply because the issue arises in federal 

court. By the same token, a state court considering a federal constitutional claim on collateral review should follow the federal rule on 

whether new or old law applies. It is not free to follow its own state-law 

view on the question simply because the issue arises in state court. 
Cite as: 552 U. S. ____ (2008) 19 

ROBERTS, C. J., dissenting 

no one would suppose that a federal court could hold 

otherwise, and grant relief under state law that a state

court would refuse to grant. The result should be the 

same when a state court is asked to give retroactive effect

to a right under the Federal Constitution that this Court

has held is not retroactive. 

The distinction between retroactivity and available 

remedies highlights the fact that the majority’s assertion

“that Teague’s general rule of nonretroactivity was an 

exercise of this Court’s power to interpret the federal

habeas statute,” ante, at 13—even if correct—is neither 

here nor there.4 While Congress has substantial control

over federal courts’ ability to grant relief for violations of 

the Federal Constitution, the Constitution gives us the 

responsibility to decide what its provisions mean. And 

with that responsibility necessarily comes the authority to

determine the scope of those provisions—when they apply

and when they do not.

This proposition—and the importance of the distinction

between retroactivity and available remedies—were confirmed when we considered the availability of federal

collateral review of state convictions under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

See 28 U. S. C. §2254(d)(1). Whatever control Congress

has over federal courts’ ability to grant postconviction 

remedies, the availability or scope of those remedies has 

no bearing on our decisions about whether new or old law 

should apply in a particular case. That is why, after 

—————— 

4The majority’s assertion, however, is a bit of an overstatement. 

Teague would be an odd form of statutory interpretation; 28 U. S. C.

§2254 is cited once in passing, 489 U. S., at 298, and §2243—the statute 

that the Court believes Teague was interpreting—is not cited at all. As 

support for its proposition, the Court cites several cases having nothing

to do with retroactivity, and numerous concurring and dissenting 

opinions that did not command a majority. See ante, at 14–15, and 

n. 15. 
20 DANFORTH v. MINNESOTA 

ROBERTS, C. J., dissenting 

AEDPA’s passage, we view the Teague inquiry as distinct

from that under AEDPA. See Horn v. Banks, 536 U. S. 

266, 272 (2002) (per curiam) (“While it is of course a necessary prerequisite to federal habeas relief that a prisoner

satisfy the AEDPA standard of review set forth in 28 

U. S. C. §2254(d), . . . none of our post-AEDPA cases have

suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard, or

that AEDPA relieves courts from the responsibility of 

addressing properly raised Teague arguments”). The 

majority today views the issue as simply one of what 

remedies a State chooses to apply; our cases confirm that 

the question whether a federal decision is retroactive is 

one of federal law distinct from the issue of available 

remedies. 

Lurking behind today’s decision is of course the question 

of just how free state courts are to define the retroactivity

of our decisions interpreting the Federal Constitution. I 

do not see any basis in the majority’s logic for concluding

that States are free to hold our decisions retroactive when 

we have held they are not, but not free to hold that they 

are not when we have held they are. Under the majority’s

reasoning, in either case the availability of relief in state 

court is a question for those courts to evaluate independently. The majority carefully reserves that question, see 

ante, at 4, n. 4, confirming that the majority regards it as 

open.

Nor is there anything in today’s decision suggesting that

States could not adopt more nuanced approaches to retroactivity. For example, suppose we hold that the Sixth 

Amendment right to be represented by particular counsel 

of choice, recently announced in United States v. GonzalezLopez, 548 U. S. 140 (2006), is a new rule that does not 

apply retroactively. Under the majority’s rationale, a 

state court could decide that it nonetheless will apply 

Gonzalez-Lopez retroactively, but only if the defendant 
Cite as: 552 U. S. ____ (2008) 21 

ROBERTS, C. J., dissenting 

could prove prejudice, or some other criterion we had 

rejected as irrelevant in defining the substantive right.

Under the majority’s logic, that would not be a misapplication of our decision in Gonzalez-Lopez—which specifically

rejected any required showing of prejudice, id., at 147– 

148—but simply a state decision on the scope of available

remedies in state court. The possible permutations—from

State to State, and federal right to federal right—are 

endless. 

* * * 

Perhaps all this will be dismissed as fine parsing of 

somewhat arcane precedents, over which reasonable 

judges may disagree. Fair enough; but I would hope that

enough has been said at least to refute the majority’s

assertion that its conclusion is dictated by our prior cases.

This dissent is compelled not simply by disagreement over 

how to read those cases, but by the fundamental issues at 

stake—our role under the Constitution as the final arbiter 

of federal law, both as to its meaning and its reach, and 

the accompanying duty to ensure the uniformity of that

federal law. 

Stephen Danforth’s conviction became final before the

new rule in Crawford was announced. In Whorton v. Bockting, 549 U. S. ___ (2007), we held that Crawford shall not 

be applied retroactively on collateral review. That should 

be the end of the matter. I respectfully dissent.