How to grok<\/a> what’s going on? Over at the Sentencing Law and Policy Blog<\/em>,\u00a0Professor Berman makes a compelling case that\u00a0Montgomery <\/em>and\u00a0Welch <\/em>are\u00a0Teague<\/em> make-up calls.<\/a>\u00a0In an age where just about everybody recognizes that there are just too many damn people in prison<\/a>, perhaps zeitgeist demands the Court\u00a0narrowly construe Teague<\/em>‘s miserly limit. Though it conflicts with my natural pessimism, I like this line of thinking. Let’s look a little closer.<\/p>\n Figure 1<\/p><\/div>\n <\/p>\n Figure 1<\/em> above shows\u00a02-degree citation network connecting last Term’s\u00a0Johnson<\/em> decision back to the Court’s first ACCA case, 1990’s\u00a0Taylor v. United States<\/em>. (To see an interactive version of the map, click the image). As Justice Alito noted in his\u00a0Johnson<\/em> dissent, the majority’s decision in that case is probably best seen as the culmination of a long campaign spearheaded by Justice Scalia to rid the ACCA of its residual clause. Per Alito, the campaign began with Scalia’s dissent in\u00a0James\u00a0<\/em>and continued with his dissent is\u00a0Sykes.\u00a0<\/em>Alito may have bemoaned the Court’s infidelity to stare decisis in Johnson<\/em>, but Justice Scalia’s war had been waged in plain sight and his reasoning finally won the day.<\/p>\n Figure 2<\/p><\/div>\n <\/p>\n Figure 2<\/em> shows the 2-degree citation network connection\u00a0Welch<\/em> back to\u00a0Teague<\/em>. This means that is shows all the cases cited in\u00a0Welch<\/em> that in turn cited\u00a0Teague.<\/em> (Once again, you can view an interactive version of the map by clicking the image). Though Justice Alito dissented in\u00a0Johnson<\/em>, he did not do so in\u00a0Welch.<\/em> This is interesting to me because Alito \u00a0joined Justice Scalia’s dissent in Montgomery\u00a0<\/em>decrying retroactive application of\u00a0Miller. <\/em>And\u00a0<\/em>Justice Thomas dissented from the narrowing of Teague\u00a0<\/em>in both Montgomery <\/em>and\u00a0Welch.\u00a0<\/em>In other words, it appears that Justice Alito “switched” on retroactivity even though he had strong views on the incorrectness of Johnson<\/em> itself.<\/p>\n To me, this is additional prima facie evidence of the new reality on Teague<\/em> retroactivity doctrine noted\u00a0by Professor Berman. Justice Alito professes support for stare decisis and it seems that he now respects the force of\u00a0Montgomery<\/em> even though he disagreed with that decision when it came down. No doubt there are other ways to read these tea leaves, but it’s hard not to feel heartened by two retroactive applications in a row of constitutional decisions that were themselves hotly contested.<\/p>\n","protected":false},"excerpt":{"rendered":" Who’d a thunk it? The Orioles have the best record in the American League and retroactivity is batting a thousand at the Supreme Court this Term. It’s all very surprising. This strange streak started back in January. In Montgomery v. … Continue reading ![\"Vague](\"http:\/\/blogs.ubalt.edu\/cstarger\/wp-content\/uploads\/sites\/273\/2016\/04\/Vague-Residual-Clause.png\")
<\/a>![\"Welch\"](\"http:\/\/blogs.ubalt.edu\/cstarger\/wp-content\/uploads\/sites\/273\/2016\/04\/Welch.png\")
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