Edwards v. Vannoy ( 2021 )

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(Slip Opinion) OCTOBER TERM, 2020 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
EDWARDS v. VANNOY, WARDEN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 19–5807. Argued December 2, 2020—Decided May 17, 2021
In 2007, a Louisiana jury found petitioner Thedrick Edwards guilty of
armed robbery, rape, and kidnapping. At the time, Louisiana law per-
mitted non-unanimous jury verdicts if at least 10 of the 12 jurors found
the defendant guilty. In Edwards’s case, 11 of 12 jurors returned a
guilty verdict as to some crimes, and 10 of 12 jurors returned a guilty
verdict as to others. After Edwards’s conviction became final on direct
review, Edwards filed a federal habeas corpus petition, arguing that
the non-unanimous jury verdict violated his constitutional right to a
unanimous jury. The District Court rejected Edwards’s claim as fore-
closed by Apodaca v. Oregon, 406 U. S. 404, and the Fifth Circuit de-
nied a certificate of appealability. While Edwards’s petition for a writ
of certiorari was pending, the Court repudiated Apodoca and held that
a state jury must be unanimous to convict a criminal defendant of a
serious offense. Ramos v. Louisiana, 590 U. S. ___. Edwards now ar-
gues that the Ramos jury-unanimity rule applies retroactively on fed-
eral collateral review.
Held: The Ramos jury-unanimity rule does not apply retroactively on
federal collateral review. Pp. 5–20.
(a) A new rule of criminal procedure applies to cases on direct re-
view, even if the defendant’s trial has already concluded. But the
Court has stated that new rules of criminal procedure ordinarily do not
apply retroactively on federal collateral review. The Court has stated
that a new procedural rule will apply retroactively on federal collateral
review only if the new rule constitutes a “watershed” rule of criminal
procedure. Teague v. Lane, 489 U. S. 288, 311 (plurality opinion).
When the Teague Court first articulated that “watershed” exception,
however, the Court stated that it was “unlikely” that such watershed
“components of basic due process have yet to emerge.” Id., at 313. And
2 EDWARDS v. VANNOY
Syllabus
in the 32 years since Teague, the Court has never found that any new
procedural rule actually satisfies the purported exception. Pp. 5–7.
(b) To determine whether Ramos applies retroactively on federal col-
lateral review, the Court must first ask whether Ramos announced a
new rule of criminal procedure and, if so, whether that rule falls within
an exception for watershed rules of criminal procedure that apply ret-
roactively on federal collateral review. The Court concludes that Ra-
mos announced a new rule and that the jury-unanimity rule an-
nounced by Ramos does not apply retroactively on federal collateral
review. Pp. 8–14.
(1) The Ramos jury-unanimity rule is new because it was not “dic-
tated by precedent existing at the time the defendant’s conviction be-
came final,” Teague, 489 U. S., at 301, or “apparent to all reasonable
jurists” at that time, Lambrix v. Singletary, 520 U. S. 518, 528. On the
contrary, before Ramos, many courts interpreted Apodaca to allow for
non-unanimous jury verdicts in state criminal trials. And the Ramos
Court expressly repudiated Apodaca. Pp. 8–10.
(2) The new rule announced in Ramos does not qualify as a “wa-
tershed” procedural rule that applies retroactively on federal collateral
review. In an attempt to distinguish Ramos from the long line of cases
where the Court has declined to retroactively apply new procedural
rules, Edwards emphasizes three aspects of Ramos: (i) the significance
of the jury-unanimity right; (ii) Ramos’s reliance on the original mean-
ing of the Constitution; and (iii) the effect of Ramos in preventing ra-
cial discrimination in the jury process. But the Court has refused to
retroactively apply other momentous cases with similar attributes. In
DeStefano v. Woods, 392 U. S. 631, the Court declined to retroactively
apply Duncan v. Louisiana, 395 U. S. 145, even though Duncan estab-
lished the jury right itself. In Whorton v. Bockting, 549 U. S. 406, the
Court declined to retroactively apply Crawford v. Washington, 541
U. S. 36, even though Crawford relied on the original meaning of the
Sixth Amendment to restrict the use of hearsay evidence against crim-
inal defendants. And in Allen v. Hardy, 478 U. S. 255 (per curiam),
the Court declined to retroactively apply Batson v. Kentucky, 476 U. S.
79, even though Batson held that state prosecutors may not discrimi-
nate on the basis of race when exercising individual peremptory chal-
lenges. There is no good rationale for treating Ramos differently from
Duncan, Crawford, and Batson. Pp. 10–14.
(3) Given the Court’s numerous precedents holding that landmark
and historic decisions announcing new rules of criminal procedure do
not apply retroactively on federal collateral review, the Court acknowl-
edges that the watershed exception is moribund and that no new rules
of criminal procedure can satisfy the purported exception for water-
shed rules. Continuing to articulate a theoretical exception that never
Cite as: 593 U. S. ____ (2021) 3
Syllabus
actually applies in practice offers false hope to defendants, distorts the
law, misleads judges, and wastes the resources of defense counsel,
prosecutors, and courts. Moreover, no one can reasonably rely on an
exception that is non-existent in practice, so no reliance interests can
be affected by forthrightly acknowledging reality. The watershed ex-
ception must “be regarded as retaining no vitality.” Herrera v. Wyo-
ming, 587 U. S. ___, ___ (slip op., at 11) (internal quotation marks omit-
ted). Pp. 14–15.
Affirmed.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., THOMAS, ALITO, GORSUCH, and BARRETT, JJ., joined. THOMAS, J.,
filed a concurring opinion, in which GORSUCH, J., joined. GORSUCH, J.,
filed a concurring opinion, in which THOMAS, J., joined. KAGAN, J., filed
a dissenting opinion, in which BREYER and SOTOMAYOR, JJ., joined.
Cite as: 593 U. S. ____ (2021) 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, Wash-
ington, 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. 19–5807
_________________
THEDRICK EDWARDS, PETITIONER v.
DARREL VANNOY, WARDEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 17, 2021]
JUSTICE KAVANAUGH delivered the opinion of the Court.
Last Term in Ramos v. Louisiana, 590 U. S. ___ (2020),
this Court held that a state jury must be unanimous to con-
vict a criminal defendant of a serious offense. Ramos repu-
diated this Court’s 1972 decision in Apodaca v. Oregon, 406
U. S. 404, which had allowed non-unanimous juries in state
criminal trials. The question in this case is whether the
new rule of criminal procedure announced in Ramos applies
retroactively to overturn final convictions on federal collat-
eral review. Under this Court’s retroactivity precedents,
the answer is no.
This Court has repeatedly stated that a decision an-
nouncing a new rule of criminal procedure ordinarily does
not apply retroactively on federal collateral review. See
Teague v. Lane, 489 U. S. 288, 310 (1989) (plurality opin-
ion); see also Linkletter v. Walker, 381 U. S. 618, 639–640,
and n. 20 (1965). Indeed, in the 32 years since Teague un-
derscored that principle, this Court has announced many
important new rules of criminal procedure. But the Court
has not applied any of those new rules retroactively on fed-
eral collateral review. See, e.g., Whorton v. Bockting, 549
2 EDWARDS v. VANNOY
Opinion of the Court
U. S. 406, 421 (2007) (Confrontation Clause rule recognized
in Crawford v. Washington, 541 U. S. 36 (2004), does not
apply retroactively). And for decades before Teague, the
Court also regularly declined to apply new rules retroac-
tively, including on federal collateral review. See, e.g.,
DeStefano v. Woods, 392 U. S. 631, 635 (1968) (per curiam)
(jury-trial rule recognized in Duncan v. Louisiana, 391
U. S. 145 (1968), does not apply retroactively).
In light of the Court’s well-settled retroactivity doctrine,
we conclude that the Ramos jury-unanimity rule likewise
does not apply retroactively on federal collateral review.
We therefore affirm the judgment of the U. S. Court of Ap-
peals for the Fifth Circuit.
I
On the night of May 13, 2006, in Baton Rouge, Louisiana,
Thedrick Edwards and an accomplice kidnapped Ryan
Eaton, a student at LSU. As Eaton was getting out of his
car, Edwards and his accomplice confronted Eaton at gun-
point and forced him back into the car. Edwards and his
accomplice then jumped into the car with Eaton. They
drove with Eaton to an ATM where they hoped to withdraw
money using Eaton’s card. When they discovered that
Eaton did not have any money in his account, they drove to
Eaton’s apartment. Once there, they bound and blindfolded
Eaton, rummaged through his apartment, and took some of
his belongings to Eaton’s car.
After they were back in the car, Edwards and his accom-
plice coerced Eaton into arranging a meeting with Eaton’s
girlfriend. They then drove to the girlfriend’s apartment
and, at gunpoint, forced Eaton to knock on the door. When
Eaton’s girlfriend opened the door, Edwards and his accom-
plice rushed inside. Both Edwards and his accomplice were
armed, and Edwards’s accomplice had his gun drawn. Ed-
wards and his accomplice instructed Eaton, Eaton’s girl-
friend, and two other women in the apartment to lie on the
Cite as: 593 U. S. ____ (2021) 3
Opinion of the Court
floor. Edwards then raped one of the women. His accom-
plice raped another woman. As they left, they grabbed
some personal property from the apartment. Edwards and
his accomplice hurried back into Eaton’s car and drove
around the corner. They then abandoned the car and fled.
Two days later, Edwards and his accomplice confronted
another man at gunpoint and forced him to withdraw
money from an ATM.
Within a day of the second incident, the police collected
substantial evidence implicating Edwards in both episodes.
The police obtained warrants to search his residence and to
arrest him. The day after the police executed the search
warrant but before an arrest, Edwards turned himself in to
the police and confessed to his crimes. The police vide-
otaped Edwards’s confession. (The video is part of the joint
appendix. See supremecourt.gov/media/media.aspx.)
Edwards was indicted in Louisiana state court for armed
robbery, kidnapping, and rape. Edwards pled not guilty
and went to trial. Before trial, Edwards moved to suppress
the videotaped confession on the ground that the confession
was involuntary. The trial court denied the suppression
motion.
At trial, the jury heard Edwards’s confession and other
evidence against him, including the testimony of eyewit-
nesses. The jury convicted Edwards of five counts of armed
robbery, two counts of kidnapping, and one count of rape.
At the time, Louisiana law permitted guilty verdicts if at
least 10 of the 12 jurors found the defendant guilty. The
jury convicted Edwards by an 11-to-1 vote on one of the
armed robbery counts, the two kidnapping counts, and the
rape count. The jury convicted Edwards by a 10-to-2 vote
on the four remaining armed robbery counts.
At sentencing, the trial judge stated: “I can say without
hesitation that this is the most egregious case that I’ve had
before me.” Record 1113. The judge sentenced Edwards to
4 EDWARDS v. VANNOY
Opinion of the Court
life imprisonment without parole. The Louisiana First Cir-
cuit Court of Appeal affirmed the conviction and sentence.
In March 2011, Edwards’s conviction became final on direct
review.
After his conviction became final, Edwards applied for
state post-conviction relief in the Louisiana courts. The
Louisiana courts denied relief.
In 2015, Edwards filed a petition for a writ of habeas cor-
pus in the U. S. District Court for the Middle District of
Louisiana. He argued that the non-unanimous jury verdict
violated his constitutional right to a unanimous jury. The
District Court rejected that claim as foreclosed by this
Court’s 1972 decision in Apodaca v. Oregon, 406 U. S. 404.
In Apodaca, this Court ruled that the Constitution does
not require unanimous jury verdicts in state criminal trials.
The Apodaca majority consisted of a plurality opinion by
four Justices and an opinion concurring in the judgment by
Justice Powell. In his opinion, Justice Powell acknowl-
edged that the Sixth Amendment requires a unanimous
jury in federal criminal trials. 406 U. S., at 371. But in his
view, the Fourteenth Amendment did not incorporate that
right against the States, meaning that a unanimous jury
was not constitutionally required in state criminal trials.
Id., at 373, 376–377. In subsequent years, many federal
and state courts viewed Justice Powell’s opinion as the con-
trolling opinion from Apodaca. See, e.g., Timbs v. Indiana,
586 U. S. ___, ___, n. 1 (2019) (slip op., at 3, n. 1); McDonald
v. Chicago, 561 U. S. 742, 766, n. 14 (2010).
In Edwards’s case, the District Court likewise followed
Justice Powell’s opinion from Apodaca and concluded that
a unanimous jury is not constitutionally required in state
criminal trials. The U. S. Court of Appeals for the Fifth Cir-
cuit denied a certificate of appealability. 2019 WL 8643258(May 20, 2019). Edwards then petitioned for a writ of cer-
tiorari in this Court, arguing that the Constitution requires
a unanimous jury in state criminal trials.
Cite as: 593 U. S. ____ (2021) 5
Opinion of the Court
II
While Edwards’s petition for certiorari was pending, this
Court decided Ramos and rejected Justice Powell’s opinion
in Apodaca. See Ramos v. Louisiana, 590 U. S. ___ (2020);
Apodaca v. Oregon, 406 U. S. 404 (1972). The Court held
that the Fourteenth Amendment incorporates the Sixth
Amendment right to a unanimous jury against the States.
Therefore, in state court as well as federal court, a jury
must be unanimous to convict a defendant of a serious of-
fense.1
The Court’s decision in Ramos directly affected Louisiana
and Oregon, which were the only two States that still al-
lowed non-unanimous juries. For those States, this Court’s
decision in Ramos immediately triggered a pressing ques-
tion: Does Ramos apply retroactively to overturn final con-
victions on federal collateral review? We granted certiorari
in Edwards’s case to decide that question. 590 U. S. ___
(2020). We conclude that Ramos does not apply retroac-
tively on federal collateral review.
A
A new rule of criminal procedure applies to cases on di-
rect review, even if the defendant’s trial has already con-
cluded. See Griffith v. Kentucky, 479 U. S. 314, 328 (1987).
But under the habeas corpus statute as interpreted by this
Court, a new rule of criminal procedure ordinarily does not
apply retroactively to overturn final convictions on federal
collateral review. See Teague v. Lane, 489 U. S. 288, 310
(1989) (plurality opinion); Penry v. Lynaugh, 492 U. S. 302,
——————
1 Ramos does not apply to defendants charged with petty offenses,
which typically are offenses that carry a maximum prison term of six
months or less. 590 U. S., at ___, n. 7. (slip op., at 3, n. 7); see also Blan-
ton v. North Las Vegas, 489 U. S. 538, 543 (1989) (defining petty offense).
6 EDWARDS v. VANNOY
Opinion of the Court
313–314 (1989).2
In stating that new procedural rules ordinarily do not ap-
ply retroactively on federal collateral review, Teague rein-
forced what had already been the Court’s regular practice
for several decades under the retroactivity standard articu-
lated in Linkletter v. Walker, 381 U. S. 618 (1965). Linklet-
ter set forth a balancing test for determining retroactivity.
But even under Linkletter, “new rules that constituted clear
breaks with the past generally were not given retroactive
effect,” including on federal collateral review. Teague, 489
U. S., at 304 (plurality opinion).
As the Court has explained, applying “constitutional
rules not in existence at the time a conviction became final
seriously undermines the principle of finality which is es-
sential to the operation of our criminal justice system.” Id.,
at 309. Here, for example, applying Ramos retroactively
would potentially overturn decades of convictions obtained
in reliance on Apodaca. Moreover, conducting scores of re-
trials years after the crimes occurred would require signifi-
cant state resources. See Teague, 489 U. S., at 310 (plural-
ity opinion). And a State may not be able to retry some
defendants at all because of “lost evidence, faulty memory,
and missing witnesses.” Allen v. Hardy, 478 U. S. 255, 260
(1986) (per curiam) (internal quotation marks omitted).
When previously convicted perpetrators of violent crimes go
free merely because the evidence needed to conduct a retrial
has become stale or is no longer available, the public suf-
fers, as do the victims. See United States v. Mechanik, 475
——————
2 Before Griffith v. Kentucky, 479 U. S. 314 (1987), the Court some-
times would decline to apply new procedural rules even to cases on direct
review. See, e.g., Johnson v. New Jersey, 384 U. S. 719, 721 (1966) (rule
announced in Miranda v. Arizona, 384 U. S. 436 (1966), applies only to
cases in which the trial began after the date of the Miranda decision).
Griffith ended that practice and declared that new rules apply to all cases
on direct review.
Cite as: 593 U. S. ____ (2021) 7
Opinion of the Court
U. S. 66, 72 (1986). Even when the evidence can be reas-
sembled, conducting retrials years later inflicts substantial
pain on crime victims who must testify again and endure
new trials. In this case, the victims of the robberies, kid-
nappings, and rapes would have to relive their trauma and
testify again, 15 years after the crimes occurred.
Put simply, the “costs imposed upon the States by retro-
active application of new rules of constitutional law on ha-
beas corpus thus generally far outweigh the benefits of this
application.” Sawyer v. Smith, 497 U. S. 227, 242 (1990)
(internal quotation marks and alteration omitted). For that
reason, the Court has repeatedly stated that new rules of
criminal procedure ordinarily do not apply retroactively on
federal collateral review.
The Court has identified only one possible exception to
that principle. The Court has stated that a new procedural
rule will apply retroactively on federal collateral review
only if it constitutes a “watershed” rule of criminal proce-
dure. Teague, 489 U. S., at 311 (plurality opinion). But the
Teague Court stated that it was “unlikely” that such water-
shed “components of basic due process have yet to emerge.”
Id., at 313; see also Whorton v. Bockting, 549 U. S. 406, 417
(2007); Schriro v. Summerlin, 542 U. S. 348, 352 (2004); Ty-
ler v. Cain, 533 U. S. 656, 667, n. 7 (2001). And in the 32
years since Teague, as we will explain, the Court has never
found that any new procedural rule actually satisfies that
purported exception.3
——————
3 By contrast, a new substantive rule—for example, a rule that partic-
ular conduct cannot constitutionally be criminalized—usually applies
retroactively on federal collateral review. See Welch v. United States,
578 U. S. 120, 128–129 (2016). The parties here agree, as do we, that the
rule announced in Ramos is procedural. The Ramos rule affects “only
the manner of determining the defendant’s culpability,” not the “range
of conduct or the class of persons that the law punishes.” Schriro v. Sum-
merlin, 542 U. S. 348, 353 (2004) (emphasis deleted).
8 EDWARDS v. VANNOY
Opinion of the Court
B
To determine whether Ramos applies retroactively on
federal collateral review, we must answer two questions.
First, did Ramos announce a new rule of criminal proce-
dure, as opposed to applying a settled rule? A new rule or-
dinarily does not apply retroactively on federal collateral
review.
Second, if Ramos announced a new rule, does it fall
within an exception for watershed rules of criminal proce-
dure that apply retroactively on federal collateral review?
1
Ramos held that a state jury must be unanimous to con-
vict a defendant of a serious offense. In so holding, Ramos
announced a new rule.
A rule is new unless it was “dictated by precedent exist-
ing at the time the defendant’s conviction became final.”
Teague, 489 U. S., at 301 (plurality opinion). In other
words, a rule is new unless, at the time the conviction be-
came final, the rule was already “apparent to all reasonable
jurists.” Lambrix v. Singletary, 520 U. S. 518, 528 (1997).
The starkest example of a decision announcing a new rule
is a decision that overrules an earlier case. See Whorton,
549 U. S., at 416.
The jury-unanimity requirement announced in Ramos
was not dictated by precedent or apparent to all reasonable
jurists when Edwards’s conviction became final in 2011. On
the contrary, before Ramos, many courts interpreted Apo-
daca to allow for non-unanimous jury verdicts in state crim-
inal trials.4 In addition, in Ramos itself, six Members of the
——————
4 See, e.g., Timbs v. Indiana, 586 U. S. ___, ___, n. 1 (2019) (slip op., at
3, n. 1) (the “Sixth Amendment requires jury unanimity in federal, but
not state, criminal proceedings”); McDonald v. Chicago, 561 U. S. 742,
766, n. 14 (2010) (“The Court has held that although the Sixth Amend-
ment right to trial by jury requires a unanimous jury verdict in federal
Cite as: 593 U. S. ____ (2021) 9
Opinion of the Court
Court acknowledged that Apodaca allowed non-unanimous
jury verdicts in state criminal trials. See 590 U. S., at ___
(SOTOMAYOR, J., concurring in part) (slip op., at 2); id., at
___ (KAVANAUGH, J., concurring in part) (slip op., at 1); id.,at ___–___ (THOMAS, J., concurring in judgment) (slip op.,
at 7–8); id., at ___ (ALITO, J., joined by ROBERTS, C. J., and
KAGAN, J., dissenting) (slip op., at 1). And other Members
of the Court recognized that Apodaca at least muddied the
waters of the Court’s Sixth Amendment jurisprudence. Id.,at ___, and n. 36 (plurality opinion) (slip op., at 10, and
n. 36). In short, even in Ramos itself, the Court indicated
that the decision was not dictated by precedent or apparent
to all reasonable jurists.
Edwards responds that the Court’s decision in Ramos
must have applied a settled rule, not a new rule, because
the decision adhered to the original meaning of the Sixth
Amendment’s right to a jury trial and the Fourteenth
Amendment’s incorporation of that right (and others)
against the States. That argument conflates the merits
question presented in Ramos with the retroactivity ques-
tion presented here. On the merits question, the critical
point, as the Court thoroughly explained in Ramos, is that
the Constitution’s text and history require a unanimous
jury in state criminal trials. On the retroactivity question,
——————
criminal trials, it does not require a unanimous jury verdict in state crim-
inal trials”); Schad v. Arizona, 501 U. S. 624, 634, n. 5 (1991) (plurality
opinion) (a “state criminal defendant, at least in noncapital cases, has no
federal right to a unanimous jury verdict”); Burch v. Louisiana, 441 U. S.
130, 137 (1979) (the Court has “approved the use of certain nonunani-
mous verdicts in cases involving 12-person juries”); Ludwig v. Massachu-
setts, 427 U. S. 618, 625 (1976) (the “holding in Apodaca” was that “the
jury’s verdict need not be unanimous”); Smith v. Swarthout, 742 F. 3d
885, 895, n. 4 (CA9 2014) (“The Supreme Court has instructed that the
Sixth and Fourteenth Amendments do not require a unanimous verdict
in state criminal prosecutions”); see also 6 W. LaFave, J. Israel, N. King,
& O. Kerr, Criminal Procedure §22.1(e), p. 23 (4th ed. 2015) (the “Sixth
Amendment does not require jury unanimity in state criminal trials”).
10 EDWARDS v. VANNOY
Opinion of the Court
the critical point is that reasonable jurists who considered
the question before Ramos interpreted Apodaca to allow
non-unanimous jury verdicts in state criminal trials.
By renouncing Apodaca and expressly requiring unani-
mous jury verdicts in state criminal trials, Ramos plainly
announced a new rule for purposes of this Court’s retroac-
tivity doctrine. And new rules of criminal procedure ordi-
narily do not apply retroactively on federal collateral
review.
2
Having determined that Ramos announced a new rule re-
quiring jury unanimity, we must consider whether that new
rule falls within an exception for watershed rules of crimi-
nal procedure that apply retroactively on federal collateral
review.
This Court has stated that the watershed exception is
“extremely narrow” and applies only when, among other
things, the new rule alters “our understanding of the bed-
rock procedural elements essential to the fairness of a
proceeding.” Whorton, 549 U. S., at 417–418 (internal
quotation marks omitted).
In the abstract, those various adjectives—watershed,
narrow, bedrock, essential—do not tell us much about
whether a particular decision of this Court qualifies for the
watershed exception. In practice, the exception has been
theoretical, not real. The Court has identified only one pre-
Teague procedural rule as watershed: the right to counsel
recognized in the Court’s landmark decision in Gideon v.
Wainwright, 372 U. S. 335, 344–345 (1963). See Whorton,
549 U. S., at 419, 421. The Court has never identified any
other pre-Teague or post-Teague rule as watershed. None.
Moreover, the Court has flatly proclaimed on multiple oc-
casions that the watershed exception is unlikely to cover
any more new rules. Even 32 years ago in Teague itself, the
Cite as: 593 U. S. ____ (2021) 11
Opinion of the Court
Court stated that it was “unlikely” that additional water-
shed rules would “emerge.” 489 U. S., at 313 (plurality
opinion). And since Teague, the Court has often reiterated
that “it is unlikely that any such rules have yet to emerge.”
Whorton, 549 U. S., at 417 (internal quotation marks and
alteration omitted); see also Beard v. Banks, 542 U. S. 406,
417 (2004); Summerlin, 542 U. S., at 352; Tyler, 533 U. S.,
at 667, n. 7; Graham v. Collins, 506 U. S. 461, 478 (1993);
Sawyer, 497 U. S., at 243; Butler v. McKellar, 494 U. S. 407,
416 (1990).
Consistent with those many emphatic pronouncements,
the Court since Teague has rejected every claim that a new
procedural rule qualifies as a watershed rule. For example,
in Beard v. Banks, 542 U. S., at 408, the Court declined to
retroactively apply the rule announced in Mills v. Mary-
land, 486 U. S. 367, 384 (1988), that capital juries may not
be required to disregard certain mitigating factors. In
O’Dell v. Netherland, 521 U. S. 151, 153 (1997), the Court
refused to retroactively apply the rule announced in Sim-
mons v. South Carolina, 512 U. S. 154, 156 (1994), that a
capital defendant must be able, in certain circumstances, to
inform the sentencing jury that he is parole ineligible. In
Lambrix v. Singletary, 520 U. S., at 539–540, the Court de-
clined to retroactively apply the rule announced in Espi-
nosa v. Florida, 505 U. S. 1079, 1082 (1992) (per curiam),
that sentencers may not weigh invalid aggravating circum-
stances before recommending or imposing the death pen-
alty. In Sawyer v. Smith, 497 U. S., at 229, the Court re-
fused to retroactively apply the rule announced in Caldwell
v. Mississippi, 472 U. S. 320, 323 (1985), which prohibited
a death sentence by a jury led to the false belief that respon-
sibility for the sentence rested elsewhere.
The list of cases declining to retroactively apply a new
rule of criminal procedure extends back long before Teague
to some of this Court’s most historic criminal procedure de-
cisions. For example, in Johnson v. New Jersey, 384 U. S.
12 EDWARDS v. VANNOY
Opinion of the Court
719, 721 (1966), the Court declined to retroactively apply
Miranda v. Arizona, 384 U. S. 436, 444–445 (1966), which
required that police inform individuals in custody of certain
constitutional rights before questioning them. And in Lin-
kletter v. Walker, 381 U. S., at 639–640, the Court refused
to retroactively apply Mapp v. Ohio, 367 U. S. 643, 655
(1961), which incorporated the Fourth Amendment exclu-
sionary rule against the States.
Edwards seeks to distinguish Ramos from the long line of
cases where the Court has declined to retroactively apply
new procedural rules. Edwards emphasizes three aspects
of Ramos: (i) the significance of the jury-unanimity right;
(ii) Ramos’s reliance on the original meaning of the Consti-
tution; and (iii) the effect of Ramos in preventing racial dis-
crimination in the jury process.
But Edwards’s attempts to distinguish Ramos are una-
vailing because the Court has already considered and re-
jected those kinds of arguments in prior retroactivity cases.
First, Edwards emphasizes the significance of the jury-
unanimity right for criminal defendants. But that argu-
ment for retroactivity cannot be squared with the Court’s
decisions in Duncan v. Louisiana, 391 U. S. 145 (1968), and
DeStefano v. Woods, 392 U. S. 631 (1968) (per curiam). In
Duncan, the Court repudiated several precedents and ruled
that a defendant has a constitutional right to a jury trial in
a state criminal case. 391 U. S., at 149–150, 154–155. Not-
withstanding the extraordinary significance of Duncan in
guaranteeing a jury trial and expanding the rights of crim-
inal defendants, the Court in DeStefano declined to retroac-
tively apply the jury right. 392 U. S., at 633; see also Sum-
merlin, 542 U. S., at 356–358 (relying on DeStefano and
rejecting retroactivity of jury right recognized in Ring v.
Arizona, 536 U. S. 584, 589 (2002)). We cannot discern a
principled basis for retroactively applying the subsidiary
Ramos jury-unanimity right when the Court in DeStefano
Cite as: 593 U. S. ____ (2021) 13
Opinion of the Court
declined to retroactively apply the broader jury right itself.5
Second, Edwards stresses that Ramos relied on the orig-
inal meaning of the Sixth Amendment. But that argument
for retroactivity is inconsistent with Crawford v. Washing-
ton, 541 U. S. 36 (2004), and Whorton v. Bockting, 549 U. S.
406 (2007). In Crawford, the Court relied on the original
meaning of the Sixth Amendment’s Confrontation Clause
to overrule precedent and restrict the use of hearsay evi-
dence against criminal defendants. 541 U. S., at 60–69.
Notwithstanding Crawford’s reliance on the original mean-
ing of the Sixth Amendment, the Court in Whorton declined
to retroactively apply Crawford. 549 U. S., at 421.
Third, Edwards says that Ramos prevents racial discrim-
ination by ensuring that the votes of all jurors, regardless
——————
5 Edwards argues that the Ramos rule mirrors the rule announced in
Burch v. Louisiana, 441 U. S. 130, 134 (1979). In Burch, the Court held
that six-person jury verdicts must be unanimous. According to Edwards,
the Court retroactively applied Burch in Brown v. Louisiana, 447 U. S.
323 (1980). But the Justices who concurred in the judgment and supplied
the decisive opinion in Brown said only that the Burch rule should apply
to all cases on direct review. 447 U. S., at 337 (opinion of Powell, J.,
joined by Stevens, J.). They did not say that the rule should apply retro-
actively on federal collateral review. So Brown does not help Edwards
here.
The Court’s decision in Ivan V. v. City of New York, 407 U. S. 203(1972) (per curiam), is no more helpful to Edwards. In In re Winship, the
Court held that a jury must find guilt “beyond a reasonable doubt.” 397
U. S. 358, 364 (1970). And in Ivan V., the Court held that the rule an-
nounced in Winship applied in a case on direct review. 407 U. S., at 205.
But in its numerous retroactivity cases, this Court has never identified
the Winship rule as a watershed rule of criminal procedure that applies
retroactively on federal collateral review. That no doubt explains why,
in his submissions to this Court, Edwards himself did not cite Ivan V. in
support of his retroactivity argument.
In any event, Brown and Ivan V. were pre-Teague decisions. See
Teague v. Lane, 489 U. S. 288 (1989). Because Teague tightened the pre-
vious standard set forth in Linkletter v. Walker, 381 U. S. 618 (1965), for
applying a decision retroactively on federal collateral review, pre-Teague
decisions holding that a rule is retroactive are not as relevant as pre-
Teague decisions holding that a rule is not retroactive, such as DeStefano.
14 EDWARDS v. VANNOY
Opinion of the Court
of race, matter in the jury room. But that argument for ret-
roactivity cannot prevail in light of Batson v. Kentucky, 476
U. S. 79 (1986), and Allen v. Hardy, 478 U. S. 255 (1986)
(per curiam). In Batson, the Court overruled precedent and
revolutionized day-to-day jury selection by holding that
state prosecutors may not discriminate on the basis of race
when exercising individual peremptory challenges. 476
U. S., at 92–93, 96–98. Nonetheless, the Court in Allen de-
clined to retroactively apply Batson. 478 U. S., at 261; see
also Teague, 489 U. S., at 295–296 (reaffirming
Allen).
The Court’s decisions in Duncan, Crawford, and Batson
were momentous and consequential. All three decisions
fundamentally reshaped criminal procedure throughout
the United States and significantly expanded the constitu-
tional rights of criminal defendants. One involved the jury-
trial right, one involved the original meaning of the Sixth
Amendment’s Confrontation Clause, and one involved ra-
cial discrimination in jury selection. Yet the Court did not
apply any of those decisions retroactively on federal collat-
eral review. Ramos is likewise momentous and consequen-
tial. But we see no good rationale for treating Ramos dif-
ferently from Duncan, Crawford, and Batson. Consistent
with the Court’s long line of retroactivity precedents, we
hold that the Ramos jury-unanimity rule does not apply ret-
roactively on federal collateral review.6
In so concluding, we recognize that the Court’s many ret-
roactivity precedents taken together raise a legitimate
question: If landmark and historic criminal procedure deci-
sions—including Mapp, Miranda, Duncan, Crawford, Bat-
son, and now Ramos—do not apply retroactively on federal
——————
6 The Ramos rule does not apply retroactively on federal collateral re-
view. States remain free, if they choose, to retroactively apply the jury-
unanimity rule as a matter of state law in state post-conviction proceed-
ings. See Danforth v. Minnesota, 552 U. S. 264, 282 (2008).
Cite as: 593 U. S. ____ (2021) 15
Opinion of the Court
collateral review, how can any additional new rules of crim-
inal procedure apply retroactively on federal collateral re-
view? At this point, some 32 years after Teague, we think
the only candid answer is that none can—that is, no new
rules of criminal procedure can satisfy the watershed ex-
ception. We cannot responsibly continue to suggest other-
wise to litigants and courts. In Teague itself, the Court rec-
ognized that the purported exception was unlikely to apply
in practice, because it was “unlikely” that such watershed
“components of basic due process have yet to emerge.” 489
U. S., at 313 (plurality opinion). The Court has often re-
peated that “it is unlikely that any of these watershed rules
has yet to emerge.” Tyler, 533 U. S., at 667, n. 7 (alteration
and internal quotation marks omitted); see also, e.g., Whor-
ton, 549 U. S., at 417; Summerlin, 542 U. S., at 352. And
for decades, the Court has rejected watershed status for
new procedural rule after new procedural rule, amply
demonstrating that the purported exception has become an
empty promise.
Continuing to articulate a theoretical exception that
never actually applies in practice offers false hope to de-
fendants, distorts the law, misleads judges, and wastes the
resources of defense counsel, prosecutors, and courts.
Moreover, no one can reasonably rely on an exception that
is non-existent in practice, so no reliance interests can be
affected by forthrightly acknowledging reality. It is time—
probably long past time—to make explicit what has become
increasingly apparent to bench and bar over the last 32
years: New procedural rules do not apply retroactively on
federal collateral review. The watershed exception is mor-
ibund. It must “be regarded as retaining no vitality.” Her-
rera v. Wyoming, 587 U. S. ___, ___ (2019) (slip op., at 11)
(internal quotation marks omitted).
16 EDWARDS v. VANNOY
Opinion of the Court
3
We respectfully offer four responses to the dissent.
First, in the dissent’s view, if a right is important enough
to justify overruling or repudiating precedent (as in Ra-
mos), then it often is important enough to apply retroac-
tively as a watershed rule of criminal procedure. But the
Court’s precedents say the opposite and demonstrate that
the dissent’s position erroneously inverts stare decisis and
Teague. Teague recognized that the Court would occasion-
ally announce new rules of criminal procedure by overrul-
ing or repudiating existing precedents. Teague further ex-
plained, however, that it was “unlikely” that such new
procedural rules would apply retroactively on federal collat-
eral review. 489 U. S., at 313 (plurality opinion). In other
words, under this Court’s longstanding case law, it is easier
to overrule or repudiate a precedent—as the Court did in
Mapp, Miranda, Duncan, Batson, and Crawford, for exam-
ple—than it is to apply the new procedural rule retroac-
tively on federal collateral review—as demonstrated by the
Court’s corresponding non-retroactivity decisions in Lin-
kletter, Johnson, DeStefano, Allen, and Whorton.
The Ramos Court fully understood all of this. Although
Ramos stopped short of expressly deciding this retroactivity
question (because it was not squarely presented), Ramos
discussed retroactivity and plainly foreshadowed today’s
decision. The lead opinion in Ramos—which was joined in
relevant part by two of today’s dissenters, JUSTICE BREYER
and JUSTICE SOTOMAYOR—explained that overruling or re-
pudiating Apodaca was not likely to significantly affect
Louisiana’s and Oregon’s reliance interests in preserving fi-
nal convictions because Ramos was not likely to apply ret-
roactively on federal collateral review. In particular, the
lead opinion said that the States’ “worries” about Ramos
applying retroactively and overturning hundreds of final
convictions outstripped “the facts” because “Teague’s test is
Cite as: 593 U. S. ____ (2021) 17
Opinion of the Court
a demanding one, so much so that this Court has yet to an-
nounce a new rule of criminal procedure capable of meeting
it.” Ramos, 590 U. S., at ___ (opinion of GORSUCH, J.) (slip
op., at 24); see also id., at ___–___ (KAVANAUGH, J., concur-
ring in part) (slip op., at 16–17). The lead opinion added
that Teague is “demanding by design, expressly calibrated
to address the reliance interests States have in the finality
of their criminal judgments.” Id., at ___ (opinion of
GORSUCH, J.) (slip op., at 24). In light of that explicit lan-
guage in Ramos, the Court’s decision today can hardly come
as a surprise.
In short, the Court’s holding today—namely, that Ramos
does not apply retroactively on federal collateral review—
carefully adheres to Ramos and tracks the Court’s many
longstanding precedents on retroactivity.
Second, the dissent suggests that the Court knows that
Ramos should apply retroactively under the watershed ex-
ception, but wants to avoid applying Ramos retroactively,
and for that reason has decided to just eliminate the water-
shed exception altogether. That suggestion is unfounded.
Ramos was a momentous decision, and those of us who
joined it continue to agree with it. But as we have ex-
plained, Ramos itself analyzed the Court’s retroactivity
precedents and foretold today’s decision on retroactivity.
We are simply following through on what Ramos (as well as
the Court’s many other precedents) already said about ret-
roactivity to now squarely hold that Ramos does not apply
retroactively on federal collateral review. If we thought
otherwise and believed that Ramos qualified under the
Court’s precedents as a rule that applies retroactively, we
would certainly say so. But applying our retroactivity prec-
edents, we have concluded that Ramos does not apply ret-
roactively—just as the Court has previously held that other
historic cases like Mapp, Miranda, Duncan, Batson, and
Crawford did not apply retroactively. After reaching that
18 EDWARDS v. VANNOY
Opinion of the Court
conclusion, we then took account of the overall jurispruden-
tial landscape of the last several decades in Teague cases
and acknowledged what has become unmistakably clear:
The purported watershed exception is moribund.
Third, on that last point, the dissent responds that
Teague nominally identified a retroactivity exception for
watershed procedural rules and that we should do so as
well. But the problem, as we see it, is that Teague simulta-
neously said that it was “unlikely” that new procedural
rules would qualify as watershed. 489 U. S., at 313 (plural-
ity opinion). So Teague took with one hand what it seem-
ingly gave with the other. And in the 32 years since Teague,
this Court has never once held that a new procedural rule
qualifies for the purported watershed exception. What is
more, the Court has regularly repeated that Teague’s wa-
tershed exception would likely never be satisfied. The
Court today need not and does not overrule any post-Teague
cases that held the watershed exception satisfied because
there are no post-Teague cases that held the watershed ex-
ception satisfied.
As noted above, no stare decisis values would be served
by continuing to indulge the fiction that Teague’s purported
watershed exception endures. No one can reasonably rely
on a supposed exception that has never operated in prac-
tice. And perpetuating what has become an illusory excep-
tion misleads litigants and judges, and needlessly expends
the scarce resources of defense counsel, prosecutors, and
courts. At this point, given that landmark cases like Mapp,
Miranda, Duncan, Batson, Crawford, and now Ramos have
not applied retroactively, we are simply acknowledging re-
ality and stating the obvious: The purported watershed ex-
ception retains no vitality.
Fourth, the dissent asserts that the Court is not living up
to the promise of Ramos for criminal defendants. To begin
with, the dissent cannot reasonably charge the Court with
failing to live up to Ramos given that Ramos itself explicitly
Cite as: 593 U. S. ____ (2021) 19
Opinion of the Court
forecast today’s decision on retroactivity. Moreover, with
respect, JUSTICE KAGAN dissented in Ramos. To be sure,
the dissent’s position on the jury-unanimity rule in Ramos
was perfectly legitimate, as is the dissent’s position on ret-
roactivity in today’s case. And it is of course fair for a dis-
sent to vigorously critique the Court’s analysis. But it is
another thing altogether to dissent in Ramos and then to
turn around and impugn today’s majority for supposedly
shortchanging criminal defendants. To properly assess the
implications for criminal defendants, one should assess the
implications of Ramos and today’s ruling together. And
criminal defendants as a group are better off under Ramos
and today’s decision, taken together, than they would have
been if JUSTICE KAGAN’s dissenting view had prevailed in
Ramos. If the dissent’s view had prevailed in Ramos, no
defendant would ever be entitled to the jury-unanimity
right—not on collateral review, not on direct review, and
not in the future. By contrast, under the Court’s holdings
in Ramos and this case, criminal defendants whose cases
are still on direct review or whose cases arise in the future
will have the benefit of the jury-unanimity right announced
in Ramos. The rhetoric in today’s dissent is misdirected.
Different Members of the Court have reached different con-
clusions in Ramos and in this case, but each Member of the
Court has acted in good faith in deciding the difficult ques-
tions before us.
* * *
To summarize the Court’s retroactivity principles: New
substantive rules alter “the range of conduct or the class of
persons that the law punishes.” Summerlin, 542 U. S., at
353. Those new substantive rules apply to cases pending in
trial courts and on direct review, and they also apply retro-
actively on federal collateral review. New procedural rules
alter “only the manner of determining the defendant’s cul-
pability.” Ibid. (emphasis deleted). Those new procedural
20 EDWARDS v. VANNOY
Opinion of the Court
rules apply to cases pending in trial courts and on direct
review. But new procedural rules do not apply retroactively
on federal collateral review.
Ramos announced a new rule of criminal procedure. It
does not apply retroactively on federal collateral review.
We affirm the judgment of the U. S. Court of Appeals for
the Fifth Circuit.
It is so ordered.
Cite as: 593 U. S. ____ (2021) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–5807
_________________
THEDRICK EDWARDS, PETITIONER v.
DARREL VANNOY, WARDEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 17, 2021]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
concurring.
I join the majority in full because it correctly charts its
way through precedent to hold expressly what we have long
implied: “New procedural rules do not apply retroactively
on federal collateral review.” Ante, at 15. I write separately
to highlight that we could also have resolved this case by
applying the statutory text of the Antiterrorism and Effec-
tive Death Penalty Act of 1996 (AEDPA). AEDPA directs
federal courts to deny “any claim that was adjudicated on
the merits in State court” unless the state court’s decision
“was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court.” 28 U. S. C. §2254(d)(1). In 2011, peti-
tioner urged a Louisiana court to hold that the Federal Con-
stitution requires jury unanimity, and the court rejected
that claim on the merits. That conclusion was consistent
with Apodaca v. Oregon, 406 U. S. 404 (1972), in which this
Court determined that the Constitution does not require
unanimous jury verdicts for state criminal convictions.
AEDPA thus leaves no room for this Court—or any federal
court—to grant relief.
2 EDWARDS v. VANNOY
THOMAS, J., concurring
I
A
Congress first prescribed federal habeas jurisdiction in
the Judiciary Act of 1789. That statute did not clearly de-
fine the scope of relief, but “the black-letter principle of the
common law [was] that the writ was simply not available at
all to one convicted of crime by a court of competent juris-
diction.”1 Bator, Finality in Criminal Law and Federal Ha-
beas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 465–
466 (1963) (Bator); see Felker v. Turpin, 518 U. S. 651, 663
(1996) (citing Ex parte Watkins, 3 Pet. 193 (1830)). And the
writ did not extend at all to prisoners confined under state
authority. Bator 465.
Congress expanded the writ in the Habeas Corpus Act of
1867. Ch. 28, 14 Stat. 385. This Act extended the writ to
prisoners in state custody but again provided only “bare
guidelines” about the scope of the writ.2 Wright v. West, 505
U. S. 277, 285 (1992) (plurality opinion). At first, this Court
continued to apply the common-law rule that allowed a
state petitioner to challenge only “the jurisdiction of the
court that had rendered the judgment under which he was
in custody.” Ibid. But the Court later “expand[ed] the cat-
——————
1 Section 14 of the Judiciary Act provided that “courts of the United
States . . . shall have power to issue writs of . . . habeas corpus” and that
“justices of the supreme court, as well as judges of the district courts,
shall have power to grant writs of habeas corpus for the purpose of an
inquiry into the cause of commitment.—Provided, That writs of habeas
corpus shall in no cases extend to prisoners in gaol, unless where they
are in custody, under or by colour of the authority of the United States,
or are committed for trial before some court of the same, or are necessary
to be brought into court to testify.” 1 Stat. 81–82.
2 The relevant language of the Act stated that courts, “in addition to
the authority already conferred by [the Judiciary Act of 1789], shall have
power to grant writs of habeas corpus in all cases where any person may
be restrained of his or her liberty in violation of the constitution, or of
any treaty or law of the United States.” 14 Stat. 385.
Cite as: 593 U. S. ____ (2021) 3
THOMAS, J., concurring
egory of claims deemed to be jurisdictional for habeas pur-
poses.” Ibid. In 1874, for example, this Court found juris-
dictional defects whenever state courts imposed sentences
under unconstitutional statutes or imposed sentences not
authorized by a statute. Ibid. (collecting cases). And a few
decades later, the Court expanded relief to situations
where, in the eyes of the federal court, “no state court had
provided a full and fair opportunity to litigate” a prisoner’s
federal claims. Ibid. But absent a “jurisdictional” defect, a
state court judgment was entitled to “ ‘absolute respect’ ” as
long as the prisoner “ ‘had been given an adequate oppor-
tunity to obtain full and fair consideration of his federal
claim in the state courts.’ ” Ibid. That rule left no room to
grant relief simply because a state court made an error of
law.
In 1953, this Court abruptly changed course and decided
that federal courts could grant a writ of habeas corpus
simply because they disagreed with a state court’s judg-
ment. See Brown v. Allen, 344 U. S. 443, 463. Around the
same time, this Court declared that many constitutional
rights of criminal procedure—some old, and some new—ap-
plied against the States. See, e.g., Mapp v. Ohio, 367 U. S.
643 (1961) (exclusionary rule); Gideon v. Wainwright, 372
U. S. 335 (1963) (right to a court-appointed attorney); Mi-
randa v. Arizona, 384 U. S. 436 (1966) (right to be informed
of right against self-incrimination). That combination pre-
dictably raised tough questions: Should new rules apply ret-
roactively to final state-court judgments, allowing federal
courts to grant habeas relief even if state courts did not err
when issuing their decisions? And if so, by what authority
could federal courts grant that relief?
Admitting that “the Constitution neither prohibits nor re-
quires retrospective effect,” Linkletter v. Walker, 381 U. S.
618, 629 (1965), the Court took an atextual and ad hoc ap-
proach, presumably based on its interpretation of the 1867
Act. The Court declared that some federal decisions apply
4 EDWARDS v. VANNOY
THOMAS, J., concurring
retroactively to final state convictions, thus allowing fed-
eral courts to grant habeas relief depending on the “merits
and demerits in each case.” Ibid. To guide the analysis,
Linkletter announced several factors for federal courts to
consider: “the prior history of the rule in question, its pur-
pose and effect, and whether retrospective operation will
further or retard its operation.” Ibid.This rule did “not le[ad] to consistent results,” so two dec-
ades later the Court tried a new interpretation of the 1867
Act. See Teague v. Lane, 489 U. S. 288, 302 (1989) (plural-
ity opinion); Danforth v. Minnesota, 552 U. S. 264, 278
(2008) (“Teague’s general rule of nonretroactivity was an ex-
ercise of this Court’s power to interpret the federal habeas
statute”). Relevant here, Teague allowed federal courts to
give new constitutional rules of criminal procedure retroac-
tive effect on habeas review only if the new rule was “wa-
tershed,” “ ‘bedrock,’ ” or “ ‘essential.’ ” 489 U. S., at 311 (em-
phasis deleted).3
B
Teague, however, was not the final word on how federal
courts should review the decisions of state courts. In 1996,
Congress enacted AEDPA, the most significant change to
the habeas corpus statute since 1867. AEDPA filled in the
“bare guidelines” of the 1867 Act by creating a comprehen-
sive system for addressing federal habeas claims brought
by state prisoners. See Wright, 505 U. S., at 285.
Directly relevant here are two provisions that ensure that
——————
3 Two years before Teague, this Court overruled cases that had allowed
courts to apply the balancing test in Linkletter v. Walker, 381 U. S. 618(1965), to cases on direct review, holding instead that the Constitution
required courts to apply new procedural rules retroactively to cases on
direct appellate review. Griffith v. Kentucky, 479 U. S. 314, 328 (1987).
Teague also explained that new rules that “accord constitutional protec-
tion to . . . primary activity” retroactively apply to cases on federal col-
lateral review. 489 U. S., at 307, 310–311. These are considered sub-
stantive rules. See Welch v. United States, 578 U. S. 120, 128 (2016).
Cite as: 593 U. S. ____ (2021) 5
THOMAS, J., concurring
state courts have the primary role in adjudicating these
claims. First, a prisoner must exhaust his claims in state
court before he can seek relief in federal court. If “any avail-
able [state-law] procedure” remains open, a federal “writ of
habeas corpus . . . shall not be granted.” §§2254(b)–(c). Sec-
ond, once a state court has had the opportunity to decide
that claim, AEDPA demands that federal courts respect
that judgment. The law precludes relief “with respect to
any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim” either (1)
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States,” or (2) “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” §2254(d).
It is not enough for a federal court to disagree with the state
court—much less disagree on a point of law that this Court
had not yet settled when the state court issued its judg-
ment. Rather, the state court’s decision must conflict with
clearly established law and be obviously wrong “beyond any
possibility for fairminded disagreement.” Harrington v.
Richter, 562 U. S. 86, 103 (2011); Greene v. Fisher, 565 U. S.
34, 38–40 (2011).
II
A
Here, the system worked as designed. Edwards pre-
sented his unanimous jury claim to a Louisiana court. And
the state court reasonably relied on Apodaca in rejecting
that claim. AEDPA is clear about what happens next—re-
lief “shall not be granted.” §2254(d).
Our analysis could have begun and ended there—with
§2254(d)(1)’s plain text. Congress, through AEDPA, has
made clear that federal courts cannot provide relief in this
case. See Montgomery v. Louisiana, 577 U. S. 190, 221
6 EDWARDS v. VANNOY
THOMAS, J., concurring
(2016) (Scalia, J., dissenting); see also Ex parte Bollman, 4
Cranch 75, 94 (1807) (Marshall, C. J.) (“[T]he power to
award the writ by any of the courts of the United States,
must be given by written law”).
B
The Court, instead, relies on Teague. I join the Court’s
opinion because it correctly applies precedent and leads to
the same judgment, but I would be remiss if I did not point
out two other problems with Teague.
First, it has never been clear what gave this Court au-
thority to grant habeas relief to state prisoners based on
“new” constitutional rules of criminal procedure. Teague
did not explain why the 1867 Act gave federal courts this
power. Moreover, Teague primarily focused on moving the
law in the opposite direction of Linkletter’s permissive ap-
proach to collaterally reviewing final state convictions. See
Danforth, 552 U. S., at 278 (“Teague . . . situated the rule it
announced in th[e] line of cases adjusting the scope of fed-
eral habeas relief in accordance with equitable and pruden-
tial considerations”). Even if federal courts had this power,
we never decided whether Congress’ most recent version of
the habeas statute—AEDPA—continued to allow such re-
lief. Given all that, the majority wisely closes a door to ret-
roactive relief that likely never existed in the first place.
Second, the Court’s reliance on Teague today and in the
past should not be construed to signal that AEDPA is an
afterthought in analyzing a claim like petitioner’s or that
Teague could justify relief where AEDPA forecloses it.
AEDPA does contemplate that some new constitutional
rules might be retroactive in narrow circumstances. See
§§2254(e)(2)(A)(i) (evidentiary hearings), 2244(b)(2)(A) (sec-
ond-or-successive bar), 2244(d)(1)(C) (statute of limita-
tions). But it does not contemplate retroactive rules upset-
ting a state court’s adjudication of an issue that reasonably
applied the law at the time. Section 2254(d)—the absolute
Cite as: 593 U. S. ____ (2021) 7
THOMAS, J., concurring
bar on claims that state courts reasonably denied—has no
exception for retroactive rights. Congress’ decision to cre-
ate retroactivity exceptions to the statute of limitations and
to the bar on second-or-successive petitions but not for
§2254(d) is strong evidence that Teague could never have
led to relief here. Russello v. United States, 464 U. S. 16,
23 (1983).4 The plain text applies regardless of what a pre-
vious interpretation of a previous statute says.5
* * *
A state court rejected petitioner’s claim that he was enti-
tled to a unanimous jury verdict. That adjudication was not
unreasonable or contrary to clearly established federal law.
AEDPA’s explicit directive thus independently resolves this
case: “a writ of habeas corpus . . . shall not be granted.”
§2254(d).
——————
4 As JUSTICE GORSUCH correctly points out, federal courts have “equi-
table discretion to decide whether to issue the writ or to provide a rem-
edy,” which includes the powers to create doctrines such as harmless er-
ror. Post, at 8 (concurring opinion). And federal courts can rely on those
doctrines as well as statutory bars to deny relief. That is why, as JUSTICE
GORSUCH explains, an equitable retroactivity bar with no watershed ex-
ception can independently justify denying relief. Post, at 9, n. 5.
5 The Constitution does not require that habeas relief be available for
new “watershed” rules of criminal procedure. See, e.g., Brown v. Allen,
344 U. S. 443, 532–533 (1953) (Jackson, J., concurring in result); Linklet-
ter, 381 U. S., at 629. Teague also acknowledged that a later change in
law does not require invalidating a final judgment. See 489 U. S., at
308–309 (plurality opinion). And again, habeas corpus traditionally did
not apply at all to prisoners sentenced by a court with valid jurisdiction.
See Bator 465–466.
Cite as: 593 U. S. ____ (2021) 1
GORSUCH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–5807
_________________
THEDRICK EDWARDS, PETITIONER v.
DARREL VANNOY, WARDEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 17, 2021]
JUSTICE GORSUCH, with whom JUSTICE THOMAS joins,
concurring.
Sometimes this Court leaves a door ajar and holds out the
possibility that someone, someday might walk through it—
though no one ever has or, in truth, ever will. In Teague v.
Lane, 489 U. S. 288 (1989), the Court suggested that one
day it might apply a new “watershed” rule of criminal pro-
cedure retroactively to undo a final state court conviction.
But that day never came to pass. Instead, over the follow-
ing three decades this Court denied “watershed” status to
one rule after another. Rules guaranteeing individuals the
right to confront their accusers. Rules ensuring that only a
jury may decide a defendant’s fate in a death penalty case.
Rules preventing racially motivated jury selection. All
failed to win retroactive application. Today, the Court can-
didly admits what has been long apparent: Teague held out
a “false hope” and the time has come to close its door. Ante,
at 15. We take this step not because this Court’s criminal
procedure rulings are somehow unimportant. Any decision
seeking to enforce liberties enshrined in the Constitution
has a claim to “watershed” importance. Instead, we aban-
don Teague’s test because it poses a question this Court has
no business asking.
2 EDWARDS v. VANNOY
GORSUCH, J., concurring
I
Though we often refer to the writ of habeas corpus, the
common law knew several. See Ex parte Bollman, 8 U. S.
(4 Cranch) 75, 97–98 (1807). All had one thing in common:
Each required a custodian to produce (habeas) a prisoner’s
person (corpus). But they served different ends. Some
writs were tools for moving a prisoner from one court to an-
other—whether for a new prosecution (ad respondendum)
or to execute a prior judgment (ad satisfaciendum). Others
functioned more like a subpoena to procure a prisoner’s
presence to testify in court (ad testificandum). Others still
served to remove a case from an inferior court to a superior
one (cum causa). 3 W. Blackstone, Commentaries on the
Laws of England 129–131 (1768).
Among them all, however, only one came to be known as
“The Great Writ.” The writ of habeas corpus ad subjicien-
dum was a mechanism for asking “why the liberty of [a]
subject[ ] is restrained.” Id., at 131 (emphasis added).
Leading up to the English Civil War, monarchs sometimes
jailed their subjects summarily and indefinitely, with little
explanation and even less process. E.g., Darnel’s Case, 3
How. St. Tr. 1–59 (K. B. 1627). In response, common law
courts developed the ad subjiciendum writ to force the
Crown to provide reasons for its actions and, if necessary,
to ensure adequate process—like a criminal trial—to justify
any further detention. See Petition of Right, 3 Car. 1, ch. 1,
¶¶ 5, 8 (1628). In other words, “habeas corpus [w]as the
instrument by which due process could be insisted upon.”
Hamdi v. Rumsfeld, 542 U. S. 507, 555 (2004) (Scalia, J.,
dissenting).
Great though it was, the writ’s power was never limitless.
A prisoner confined under a final judgment of conviction by
a court of competent jurisdiction stood on different footing
than one confined by the King without trial. A court might
issue the writ asking, “What is the reason for confinement?”
Cite as: 593 U. S. ____ (2021) 3
GORSUCH, J., concurring
But if the return came back: “Because he’s serving a custo-
dial sentence after being convicted of a crime,” the inquiry
was usually at an end. See Opinion on the Writ of Habeas
Corpus, Wilm. 77, 88, 97 Eng. Rep. 29, 36 (K. B. 1758); cf.
Anonymus, Cart. 221, 124 Eng. Rep. 928 (C. P. 1671); Ha-
beas Corpus Act of 1679, 31 Car. 2, ch. 2, ¶¶ 2, 20. Custody
pursuant to a final judgment was proof that a defendant
had received the process due to him. See, e.g., Bushell’s
Case, Vaugh. 135, 142–143, 124 Eng. Rep. 1006, 1009–1010
(C. P. 1670).
In 1789, Congress authorized federal courts to issue the
habeas writ. 1 Cong. ch. 20, § 14, 1 Stat. 73, 81–82; Ex parte
Bollman, 8 U. S. (4 Cranch), at 93–94. When called upon to
interpret that statute, this Court defined the scope of ha-
beas review by looking “to the common law.” Id., at 93–94.
Unsurprisingly, it proceeded to restate the longstanding
rule associated with criminal judgments: Ad subjiciendum
provided no recourse for a prisoner confined pursuant to a
final judgment of conviction. Ex parte Watkins, 28 U. S. (3
Pet.) 193, 209 (1830). As Chief Justice Marshall rhetori-
cally asked, “is not that judgment in itself sufficient cause?”
Id., at 202 (emphasis added).
If the answer was nearly always yes, one important ex-
ception existed both here and in England. A habeas court
could grant relief if the court of conviction lacked jurisdic-
tion over the defendant or his offense. Id., at 202–203. Still,
the exception was “confined” to that “limited class of cases.”
Ex parte Parks, 93 U. S. (3 Otto) 18, 21 (1876). One judge
could not grant relief just because he might have decided
the merits of the case differently than another had. As this
Court put it, a perceived “error in the judgment or proceed-
ings, under and by virtue of which the party is imprisoned,
constitute[d] no ground for” relief. Ex parte Siebold, 100
U. S. (10 Otto) 371, 375 (1880). Any other approach, the
Court explained, risked converting the habeas writ into “a
mere writ of error,” little more than a chance to redo a trial
4 EDWARDS v. VANNOY
GORSUCH, J., concurring
or its appeal. Ibid.Originally, Congress allowed federal courts to issue ha-
beas writs only to federal custodians. Reconstruction
changed that. After the Civil War, Congress granted fed-
eral courts the power to issue habeas writs to state author-
ities as well. See Act of Feb. 5, 1867, 39 Cong. ch. 28, § 1,
14 Stat. 385, 385.1 Even then, however, this Court contin-
ued to interpret the habeas statute consistent with histori-
cal practice. If a prisoner was in custody pursuant to a final
state court judgment, a federal court was powerless to re-
visit those proceedings unless the state court had acted
without jurisdiction. E.g., In re Graham, 138 U. S. 461, 462
(1891); Tinsley v. Anderson, 171 U. S. 101, 104–106 (1898);
Markuson v. Boucher, 175 U. S. 184, 185–186 (1899); Med-
craf v. Hodge, 245 U. S. 630, 630 (1917) (per curiam).
Under the view that prevailed in this country for most of
our history, and in England for even longer, Teague’s ques-
tion about the “retroactive” application of “watershed” rules
of criminal procedure to undo final criminal judgments
would have made no sense. Because a final judgment of
conviction, pursuant to a full-fledged criminal trial, was the
process due to a criminal serving a custodial sentence, the
habeas writ had served its purpose. A final judgment evi-
denced a lawful basis for confinement and was “binding on
all the world.” Ex parte Watkins, 28 U. S. (3 Pet.), at 207.
——————
1 That Act conferred on federal courts the “power to grant writs of ha-
beas corpus in all cases where any person may be restrained of his or her
liberty in violation of” federal law. Ibid. (emphasis added). Two earlier
statutes extended federal habeas jurisdiction to state custodians, but
only for a much narrower class of cases. In 1833, Congress authorized
federal courts to issue habeas process to state custodians detaining fed-
eral officers for acts taken to implement federal law. Act of Mar. 2, 1833,
22 Cong. ch. 57, § 7, 4 Stat. 632, 634–635. This provision lives on in 28
U. S. C. § 2241(c)(2). And in 1842, Congress permitted federal courts to
issue habeas process to state custodians detaining foreign officials whose
acts implicated the law of nations. Act of Aug. 29, 1842, 27 Cong. ch.
257, 5 Stat. 539, 539. It, too, lives on in 28 U. S. C. § 2241(c)(4).
Cite as: 593 U. S. ____ (2021) 5
GORSUCH, J., concurring
II
Only in the middle of the twentieth century did things
really begin to change. In 1915, this Court suggested that
a state court’s extreme departure from “established modes”
of criminal trial practice, such as proceeding under the
specter of mob violence, might be akin to the loss of “juris-
diction,” at least if no corrective mechanism like an appeal
existed. Frank v. Mangum, 237 U. S. 309, 326, 335–336
(1915). But if that represented an innovation, it was a mod-
est one.
The same cannot be said for Brown v. Allen, 344 U. S.
443, 464, 478 (1953). There, this Court effectively recast
habeas as another way for federal courts to redress practi-
cally any error of federal law they might find in state court
proceedings. Never mind that state courts are obligated to
follow federal law under the Supremacy Clause. Never
mind that those courts may have already passed on a de-
fendant’s argument about his federal rights. See id., at 487;
id., at 497–501 (Frankfurter, J.). Never mind, too, that the
defendant may have lost on appeal within the state court
system, and even petitioned this Court for direct review.
See id., at 456–457; id., at 489–497 (Frankfurter, J.). Eve-
ryone accepts that, in our criminal justice system today, a
judgment becomes final only after the completion of a trial
and the appellate process, including the opportunity to seek
certiorari from this Court on questions of federal law. See
Clay v. United States, 537 U. S. 522, 527 (2003).2 Yet, even
——————
2 When a sovereign furnishes an opportunity to appeal (as state and
federal governments now do), it necessarily invites an appellate court to
revisit an initial merits determination. See J. Baker, An Introduction to
English Legal History 148–153 (5th ed. 2019) (describing development of
the appeal at common law); G. Jacob, A New Law-Dictionary (1729) (de-
fining “appeal”). Under an appellate system, then, “[n]one of the[ ] [pre-
ceding decisions] are final” in an ultimate sense until any appeals are
concluded. 3 W. Blackstone, Commentaries on the Laws of England 411
(1768).
6 EDWARDS v. VANNOY
GORSUCH, J., concurring
after all that, Brown held, a federal district court could still
vacate a final state court judgment based on any perceived
error of federal law it might detect—and do so though the
entire state judicial system and this Court had seen nothing
amiss. 344 U. S., at 465–487; id., at 506–507 (Frankfurter,
J.).
The result? As Justice Jackson warned, habeas became
little more than an ordinary appeal with an extraordinary
Latin name. The Court “so departed from [the finality]
principle that the profession now believes that the issues
[federal courts] actually consider [in] habeas corpus are
substantially the same as would be considered on appeal.”
Id., at 540 (Jackson, J., concurring in result). “The fatal
sentence that in real life writes finis to many causes”—
Judgment affirmed. or Certiorari denied.—became “in legal
theory . . . a complete blank.” Id., at 543. Justice Jackson
feared that this result not only “trivializ[ed] . . . the writ,”
but promised practical problems too. Id., at 536. A large
new “haystack” of frivolous habeas petitions was sure to fol-
low, making it that much harder for courts to identify the
meritorious “needle.” Id., at 537. The only solution Justice
Jackson could see was to hold fast to the traditional rule: A
final judgment, after completion of trial and the exhaustion
of any direct appellate review, was res judicata, and the sole
exception was a lack of jurisdiction. Id., at 543–544.
Brown not only upended centuries of settled precedent
and invited practical problems; it produced anomalies as
well. The very same term it decided Brown, this Court re-
jected Brown’s fix-any-error approach for final judgments
issued by military courts. Burns v. Wilson, 346 U. S. 137,
142 (1953) (plurality opinion); id., at 147 (Minton, J., con-
curring in judgment). So only state convicts—not United
States service members—were afforded an additional ave-
nue for appellate relief in the garb of habeas corpus pro-
ceedings. It turned out, too, that only state courts—not ex-
ecutive tribunals—were forced to suffer the indignity of
Cite as: 593 U. S. ____ (2021) 7
GORSUCH, J., concurring
having their final judgments reopened. So federal courts
wound up with more power to reopen the judgments of a
different sovereign’s courts than the administrative pro-
ceedings of the federal government itself. See Rushing v.
Wilkinson, 272 F. 2d 633, 641 (CA5 1959); M. Howe, Fore-
word: The Supreme Court, 1952 Term, 67 Harv. L. Rev. 91,
160–162 (1953).
With time, these implications became clear and, as Jus-
tice Jackson predicted, Brown’s innovation proved unsus-
tainable. The haystack just grew too large. During the
1960s, this Court incorporated the exclusionary rule
against the States. Mapp v. Ohio, 367 U. S. 643, 655 (1961).
It announced a Sixth Amendment right to a public de-
fender. Gideon v. Wainwright, 372 U. S. 335, 339–340, 342
(1963). It barred the government from speaking to the de-
fendant outside defense counsel’s presence. Massiah v.
United States, 377 U. S. 201, 204–206 (1964). And it an-
nounced a new script governing police interrogations. Mi-
randa v. Arizona, 384 U. S. 436, 467–477 (1966). This pro-
liferation of new federal procedural rights, combined with a
federal post-conviction mechanism that functioned like an
ordinary appeal, soon yielded a giant haystack of habeas
petitions.
For years, this Court struggled to devise rules for sorting
the hay from the needles. Its approach varied wildly and
inconsistently over time. In a few cases, the Court held a
new rule of criminal procedure should not apply retroac-
tively to settled convictions. Tehan v. United States ex. rel.
Shott, 382 U. S. 406, 409, n. 3, 419 (1966); Linkletter v.
Walker, 381 U. S. 618, 622, 639–640 (1965). On occasion,
though, it extended the benefit of a new rule to litigants
with final criminal judgments—sometimes only to the
named petitioner in this Court, Jackson v. Denno, 378 U. S.
368, 377 (1964), other times to everyone laboring under a
final judgment, McNerlin v. Denno, 378 U. S. 575, 575
(1964) (per curiam). Justice Harlan called these divergent
8 EDWARDS v. VANNOY
GORSUCH, J., concurring
results “an extraordinary collection of rules.” Desist v.
United States, 394 U. S. 244, 256–257 (1969) (Harlan, J.,
dissenting). He even wondered whether they could
“properly be considered the legitimate products of a court of
law.” Id., at 259.
III
It was only in this world that Teague’s question about the
retroactive application of new “watershed” rules of criminal
procedure could even begin to make sense. In an effort to
bring some coherence to the area, the Court refocused its
attention on the terms of the federal habeas statute. The
statute provides that “writs of habeas corpus may be
granted”—not that they must be granted. 28 U. S. C.
§ 2241(a) (emphasis added); see also id. § 2243. The law
thus invests federal courts with equitable discretion to de-
cide whether to issue the writ or to provide a remedy.
Withrow v. Williams, 507 U. S. 680, 716 (1993) (Scalia, J.,
concurring in part and dissenting in part).3
Exercising this remedial discretion, the Court began to
develop doctrines aimed at returning the Great Writ closer
to its historic office. It decided that some claims are not
cognizable on federal habeas review if state courts provide
a mechanism for review. Stone v. Powell, 428 U. S. 465,
494–495 (1976). It established procedural default rules to
prevent habeas petitioners from evading independent and
adequate state law grounds for sustaining their convictions.
Wainwright v. Sykes, 433 U. S. 72, 86–87 (1977). It crafted
a heightened harmless error standard, calibrated to reflect
the finality interests at stake in the post-conviction context.
Brecht v. Abrahamson, 507 U. S. 619, 633–638 (1993). And
——————
3 That is how this Court reads nearly identical text in the Declaratory
Judgment Act (DJA). Because the DJA says federal courts “ ‘may declare
the rights and other legal relations of any interested party,’ ” district
courts “possess discretion” to award declaratory relief. Wilton v. Seven
Falls Co., 515 U. S. 277, 282, 286 (1995).
Cite as: 593 U. S. ____ (2021) 9
GORSUCH, J., concurring
it applied abuse-of-the-writ rules to prevent an endless cy-
cle of petition and re-petition by prisoners with nothing but
time on their hands. McCleskey v. Zant, 499 U. S. 467, 489–
493 (1991).
Chief among these new-but-old developments was
Teague. Drawing on the historic role of habeas, the Court
held that newly recognized rules of criminal procedure
should not normally apply to cases “which have become fi-
nal.” 489 U. S., at 304–310.4 Hard experience since Brown
had reminded the Court that finality, “the idea that at some
point a criminal conviction reaches an end, a conclusion, a
termination, ‘is essential to the operation of our criminal
justice system.’ ” Prost v. Anderson, 636 F. 3d 578, 582
(CA10 2011). One might “always continue to ask” whether
a particular judgment was “correct.” P. Bator, Finality in
Criminal Law and Federal Habeas Corpus for State Prison-
ers, 76 Harv. L. Rev. 441, 446–448 (1963). But if the rule of
law means anything, it means the final result of proceed-
ings in courts of competent jurisdiction establishes what is
correct “in the eyes of the law.” Herrera v. Collins, 506 U. S.
390, 399–400 (1993).5
——————
4 Although the lead opinion in Teague garnered only a plurality, a ma-
jority of the Court adopted the plurality’s rule later that same year in
Penry v. Lynaugh, 492 U. S. 302, 313 (1989).
5 Apparently believing our judge-made doctrines did not go far enough,
Congress added further “new restrictions” of its own in the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). Felker v. Turpin, 518
U. S. 651, 664 (1996). But AEDPA creates only additional conditions to
relief; it did not do away with the discretion afforded courts in the habeas
statute, or the various rules this Court has formulated in the exercise of
that discretion. As this Court has (unanimously) explained, “AEDPA did
not codify Teague” and the one “neither abrogates [n]or qualifies the
other.” Greene v. Fisher, 565 U. S. 34, 39 (2011). That is why Teague’s
retroactivity bar operates “in addition” to AEDPA’s relitigation bar in 28
U. S. C. § 2254(d). Horn v. Banks, 536 U. S. 266, 272 (2002) (per curiam).
Because a retroactivity bar and a relitigation bar both pose threshold
barriers, JUSTICE THOMAS’s concurrence highlights how AEDPA provides
10 EDWARDS v. VANNOY
GORSUCH, J., concurring
IV
While Teague did much to return the writ to its original
station, it didn’t quite complete the journey. After insisting
that final judgments cannot be reopened as a “general rule,”
Teague left some wiggle room. It added that some new rules
of criminal procedure might yet apply retroactively if they
had “watershed” significance. 489 U. S., at 311. Why? Be-
cause “ ‘time and growth in social capacity, as well as judi-
cial perceptions,’ ” might “ ‘alter our understanding of the
bedrock procedural elements’ ” necessary to satisfy notions
of “ ‘fairness.’ ” Ibid. To help the world know what a water-
shed rule might look like, the Court described it in various
ways—“bedrock,” “fundamental,” “central,” an “absolute
prerequisite.” Id., at 311–314. A rule fitting that bill,
Teague said, would do two things: (1) “ ‘significantly im-
prove’ ” existing procedures for determining factual guilt or
innocence and (2) “implicate the fundamental fairness of
the trial.” Id., at 312–313.6
But all these words have yielded nothing. In more than
three decades since Teague, not a single new rule of crimi-
nal procedure has satisfied its “watershed” test. Ante, at
10–15. Nor is it as if we have lacked promising candidates.
——————
an additional reason why the Fifth Circuit correctly denied a certificate
of appealability here. Ante, at 5 (concurring opinion); see Miller-El v.
Cockrell, 537 U. S. 322, 350 (2003) (Scalia, J., concurring).
6 Teague also discussed an exception to the finality rule for certain
“substantive rules.” Because the parties agree that Ramos involved only
a new rule of criminal procedure, little need be said about Teague’s “sub-
stantive rule” exception. But it is worth noting that substantive rules,
which place certain conduct “ ‘beyond the power of the criminal law-mak-
ing authority to prescribe,’ ” id., at 307, bear at least some resemblance
to this Court’s early cases finding a lack of jurisdiction over a defendant
or an offense. See Ex parte Siebold, 100 U. S. (10 Otto), at 376; Ex parte
Parks, 93 U. S. (3 Otto), at 20–21. Perhaps this aspect of Teague can be
understood as accurately invoking the jurisdictional exception to the fi-
nality rule; perhaps not. See Brown, 344 U. S., at 533, n. 4 (Jackson, J.,
concurring in result). But that question is for another day.
Cite as: 593 U. S. ____ (2021) 11
GORSUCH, J., concurring
This Court has refused “watershed” status to new rules that
seek to ensure death penalty decisions are made by jurors
rather than judges. See Schriro v. Summerlin, 542 U. S.
348 (2004) (denying watershed status to Ring v. Arizona,
536 U. S. 584 (2002)). New rules designed to ensure race
discrimination plays no role in jury selection met the same
fate even before Teague. See Allen v. Hardy, 478 U. S. 255(1986) (per curiam) (denying retroactive application to Bat-
son v. Kentucky, 476 U. S. 79 (1986)). Rules that sought to
realign our jurisprudence with the original meaning of the
Sixth Amendment’s Confrontation Clause have failed to
qualify too. See Whorton v. Bockting, 549 U. S. 406 (2007)
(denying watershed status to Crawford v. Washington, 541
U. S. 36 (2004)).
The Court’s decision today retraces this familiar path. It
denies “watershed” status to Ramos v. Louisiana, 590 U. S.
___ (2020), a decision that (like Crawford) returned us to
the original meaning of the Sixth Amendment—and one
that (like Ring and Batson) concerns a vital aspect of the
jury trial right. The Court explains why this result neces-
sarily follows from our post-Teague precedents: If so many
other highly consequential rulings have failed to clear
Teague’s bar, it’s hard to see how Ramos might. One could
even say that any other result would defy this Court’s re-
cent precedents. Ante, at 14.
At the same time, though, one might also say these prec-
edents illustrate how mystifying the whole Teague project
has been from its inception. If Teague only prohibits the
retroactive application of new rules of criminal procedure,
after all, it’s not exactly obvious why that prohibition ap-
plies to cases like Crawford or Ramos. Both decisions
sought to realign this Court’s decisions with the original
meaning of the Sixth Amendment; in that sense, the rights
they recognized were anything but new. And to the extent
Teague asks whether a new rule is “fundamental” or “bed-
rock,” it’s hard to see how rights originally memorialized in
12 EDWARDS v. VANNOY
GORSUCH, J., concurring
the Constitution could fail to qualify. Certainly, this Court
is in no position to second-guess the judgment of those who
wrote and ratified the Constitution. Surely, too, many of
the other rules of criminal procedure this Court has found
less than “fundamental” since Teague seem anything but
that to those whose lives they affect. Nor is it only Teague’s
results that mystify. The test itself has been fraught with
contradictions from the start. It asks litigants to be on the
lookout for new procedural protections “ ‘implicit in the con-
cept of ordered liberty.’ ” Beard v. Banks, 542 U. S. 406, 417
(2004). At the same time, we have been told, the fact that
“a new procedural rule is ‘fundamental’ in some abstract
sense is not enough.” Summerlin, 542 U. S., at 352.
For me, it’s here where the history canvassed above mat-
ters. This Court’s (in)activity since Teague only begins to
make sense when viewed against the backdrop of the tradi-
tional rule that old judgments are impervious to new chal-
lenges. Yes, this Court’s decisions should apply to all cases
pending in trial courts and on direct appeal. But they
should not apply retroactively in habeas. The reason has
nothing to do with whether Members of this Court happen
to think the rules they announce are “new” in some sense
or insufficiently “fundamental” in another. It’s simpler
than that: The writ of habeas corpus does not authorize
federal courts to reopen a judgment issued by a court of
competent jurisdiction once it has become final. Supra,
at 2–4.
It’s here, too, where today’s decision makes its real con-
tribution. If Teague pointed us back in the direction of the
traditional rule, each of the cases that has followed in its
wake has edged us, step-by-step, closer still. Today’s deci-
sion advances the progress by making express what has
long been barely implicit: The “watershed” exception for
new rules of criminal procedure is no exception at all. Ante,
at 15. Not only does this development do much to honor the
traditional understanding of habeas review and the great
Cite as: 593 U. S. ____ (2021) 13
GORSUCH, J., concurring
weight of this Court’s precedents throughout its history. It
also allows us to retire a test that was unknown in law until
1989 and whose contours remain unknowable decades
later. It frees this Court from the dreary task of needing to
concoct reasons to denigrate the importance of obviously
important rules like those discussed in Ramos, Ring, Bat-
son, and Crawford, which affect the lives and liberty of
countless individuals. It does away with the strange busi-
ness of having to repackage old rules as new ones. And it
eliminates the need for litigants and lower courts to endure
years of protracted litigation—tangling with a contradic-
tory test and seemingly inexplicable precedents—all sure to
achieve nothing. The Court’s candor today is admirable—
and correct.7
With these observations, I am pleased to join the Court’s
opinion. My vote in similar cases to come will, I hope, “be
guided as nearly as [possible] by the principles set forth
herein.” Brown, 344 U. S., at 548 (Jackson, J., concurring
in result).
——————
7 The dissent criticizes today’s decision as a departure from modern ha-
beas precedent. Post, at 2; post, at 3, n. 2; post, at 12–13. But the dis-
sent’s history is selective. The dissent champions decisions from the
1950s, ’60s, and ’70s. But it disregards how those decisions departed
from a century of this Court’s precedents and the common law before
that. Supra, at 5–8. At the same time, the dissent’s account overlooks
this Court’s precedents refusing to afford retroactive application in every
case since the 1980s. Post, at 10–11; post, at 12, n. 7. The dissent may
prefer decisions within a particular 30-year window. But it is too much
to say this preference is required to “[r]espect[ ] stare decisis.” Post, at 1,
n. 1.
Cite as: 593 U. S. ____ (2021) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–5807
_________________
THEDRICK EDWARDS, PETITIONER v.
DARREL VANNOY, WARDEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 17, 2021]
JUSTICE KAGAN, with whom JUSTICE BREYER and
JUSTICE SOTOMAYOR join, dissenting.
“A verdict, taken from eleven, [i]s no verdict at all,” this
Court proclaimed just last Term. Ramos v. Louisiana, 590
U. S. ___, ___−___ (2020) (slip op., at 4–5) (internal quota-
tion marks omitted). Citing centuries of history, the Court
in Ramos termed the Sixth Amendment right to a unani-
mous jury “vital,” “essential,” “indispensable,” and “funda-
mental” to the American legal system. Id., at ___, ___, ___
(slip op., at 4, 6, 7). The Court therefore saw fit to disregard
stare decisis and overturn a 50-year-old precedent enabling
States to convict criminal defendants based on non-unani-
mous verdicts.1 And in taking that weighty step, the Court
also vindicated core principles of racial justice. For in the
Court’s view, the state laws countenancing non-unanimous
verdicts originated in white supremacism and continued in
our own time to have racially discriminatory effects. See
id., at ___−___ (slip op., at 2–3); id., at ___ (SOTOMAYOR, J.,
concurring in part) (slip op., at 4); id., at ___−___
——————
1 I dissented in Ramos precisely because of its abandonment of stare
decisis. See 590 U. S., at ___−___ (slip op., at 5–9) (ALITO, J., dissenting);
see also Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 455 (2015)
(“Respecting stare decisis means sticking to some wrong decisions”). Now
that Ramos is the law, stare decisis is on its side. I take the decision on
its own terms, and give it all the consequence it deserves.
2 EDWARDS v. VANNOY
KAGAN, J., dissenting
(KAVANAUGH, J., concurring in part) (slip op., at 12–15).
Put all that together, and it is easy to see why the opinions
in Ramos read as historic. Rarely does this Court make
such a fundamental change in the rules thought necessary
to ensure fair criminal process. If you were scanning a the-
saurus for a single word to describe the decision, you would
stop when you came to “watershed.”
Yet the Court insists that Ramos’s holding does not count
as a “watershed” procedural rule under Teague v. Lane, 489
U. S. 288, 311 (1989) (plurality opinion). The result of to-
day’s ruling is easily stated. Ramos will not apply retroac-
tively, meaning that a prisoner whose appeals ran out be-
fore the decision can receive no aid from the change in law
it made. So Thedrick Edwards, unlike Evangelisto Ramos,
will serve the rest of his life in prison based on a 10-to-2
jury verdict. Only the reasoning of today’s holding resists
explanation. The majority cannot (and indeed does not)
deny, given all Ramos said, that the jury unanimity re-
quirement fits to a tee Teague’s description of a watershed
procedural rule. Nor can the majority explain its result by
relying on precedent. Although flaunting decisions since
Teague that held rules non-retroactive, the majority comes
up with none comparable to this case. Search high and low
the settled law of retroactivity, and the majority still has no
reason to deny Ramos watershed status.
So everything rests on the majority’s last move—the over-
turning of Teague’s watershed exception. If there can never
be any watershed rules—as the majority here asserts out of
the blue—then, yes, jury unanimity cannot be one. The re-
sult follows trippingly from the premise. But adopting the
premise requires departing from judicial practice and prin-
ciple. In overruling a critical aspect of Teague, the majority
follows none of the usual rules of stare decisis. It discards
precedent without a party requesting that action. And it
does so with barely a reason given, much less the “special
justification” our law demands. Halliburton Co. v. Erica P.
Cite as: 593 U. S. ____ (2021) 3
KAGAN, J., dissenting
John Fund, Inc., 573 U. S. 258, 266 (2014). The majority in
that way compounds its initial error: Not content to misap-
ply Teague’s watershed provision here, see ante, at 10–14,
the majority forecloses any future application, see ante, at
14–15. It prevents any procedural rule ever—no matter
how integral to adjudicative fairness—from benefiting a de-
fendant on habeas review. Thus does a settled principle of
retroactivity law die, in an effort to support an insupporta-
ble ruling.
I
Start with what Teague and its progeny repeatedly said
about what makes a new rule of criminal procedure “water-
shed” (so that, before today, the rule applied retroactively).2
A watershed rule, we held, is “implicit in the concept of or-
dered liberty.” Teague, 489 U. S., at 311 (plurality opinion)
(internal quotation marks omitted). Such a rule addresses
one of “the bedrock procedural elements” of the criminal
process. Ibid. (emphasis deleted). Or similarly stated, it
plays a “fundamental” and “central[ ]” role in a trial. Beard
v. Banks, 542 U. S. 406, 418, 420 (2004). More specifically,
a new rule, to qualify as watershed, must be “essential to
[the trial’s] fairness.” Whorton v. Bockting, 549 U. S. 406,
418 (2007); see Teague, 489 U. S., at 312 (plurality opinion).
And it must go to the defendant’s guilt or innocence, “pre-
vent[ing] an impermissibly large risk of an inaccurate
conviction.” Whorton, 549 U. S., at 418 (internal quotation
marks omitted); see Teague, 489 U. S., at 312 (plurality
opinion). Those requirements set a high bar. But they
capture—or anyway, were once meant to—a “small core of
——————
2 Prior to Teague, the Court gave retroactive effect to a somewhat wider
range of new procedural rules. See ante, at 13, n. 5; Danforth v. Minne-
sota, 552 U. S. 264, 271–273 (2008). To find the no-retroactivity-ever
rule that the majority announces today, a time traveler would have to go
back to around 1950—when the Bill of Rights’ protections for criminal
defendants did not even apply to the States. See ibid.4 EDWARDS v. VANNOY
KAGAN, J., dissenting
rules” needed to fairly adjudicate a defendant’s guilt.
Beard, 542 U. S., at 417.
The first clue that the unanimity rule falls within
Teague’s small core is that the Court thought its adoption
justified overturning precedent. Ramos didn’t just an-
nounce a new rule. It reversed a prior, well-settled one. As
the majority recounts, “Ramos repudiated this Court’s 1972
decision in Apodaca v. Oregon, 406 U. S. 404, which had
allowed non-unanimous juries in state criminal trials.”
Ante, at 1. Such a toppling of precedent needs a special
justification—more than a run-of-the-mill claim of error. To
meet that demand, the Ramos majority described Apodaca
as flouting the essential “meaning of the Sixth Amend-
ment’s jury trial right,” as revealed in both historical prac-
tice and judicial decisions. 590 U. S., at ___ (slip op., at 21).
Two concurring Justices added, to support discarding this
“egregiously wrong” precedent, that the unanimity rule pre-
vents improper verdicts: Apodaca “sanctions the conviction”
of some defendants who would otherwise defeat the State’s
efforts “to [meet] its burden” of proving guilt. 590 U. S., at
___ (KAVANAUGH, J.) (slip op., at 12); id., at ___
(SOTOMAYOR, J.) (slip op., at 2). And the majority and con-
currences alike invoked racial justice to support abandon-
ing stare decisis, explaining how a non-unanimity rule has
posed a special danger of canceling Black jurors’ votes. See
id., at ___–___, ___ (slip op., at 1–2, 21); id., at ___
(SOTOMAYOR, J.) (slip op., at 4); id., at ___–___
(KAVANAUGH, J.) (slip op., at 12–15); infra, at 8. At bottom,
then, the Court took the unusual step of overruling prece-
dent for the most fundamental of reasons: the need to en-
sure, in keeping with the Nation’s oldest traditions, fair and
dependable adjudications of a defendant’s guilt. In this
much alone, Ramos’s reasoning evokes this Court’s descrip-
tions of watershed rules.3
——————
3 The majority misunderstands my point about the interaction between
Cite as: 593 U. S. ____ (2021) 5
KAGAN, J., dissenting
And putting talk of stare decisis aside, there remains
much more in Ramos to echo Teague. If, as today’s majority
says, Teague is full of “adjectives,” ante, at 10, so too is Ra-
mos—and mostly the same ones. Jury unanimity, the
Court pronounced, is an “essential element[ ]” of the jury
trial right, and thus is “fundamental to the American
scheme of justice.” 590 U. S., at ___–___ (slip op., at 6–7).
The Court discussed the rule’s “ancient” history—“400
years of English and American cases requiring unanimity”
leading up to the Sixth Amendment. Id., at ___, ___ (slip
op., at 15, 11). As early as the 14th century, English com-
mon law recognized jury unanimity as a “vital right.” Id.,at ___ (slip op., at 4). Adopting that view, the early Ameri-
can States likewise treated unanimity as an “essential fea-
ture of the jury trial.” Id., at ___ (slip op., at 5). So by the
time the Framers drafted the Sixth Amendment, “the right
to a jury trial meant a trial in which the jury renders a
unanimous verdict.” Id., at ___ (slip op., at 12) (emphasis
in original). Because that was so, no jury verdict could
stand (or in some metaphysical sense, even exist) absent
full agreement: “A verdict, taken from eleven, was no ver-
dict at all.” Id., at ___–___ (slip op., at 4–5) (internal quota-
tion marks omitted). Unanimity served as a critical safe-
guard, needed to protect against wrongful deprivations of
citizens’ “hard-won liberty.” Id., at ___ (slip op., at 15). Or
as Justice Story summarized the law a few decades after
——————
stare decisis and Teague. I am not saying that if a “right is important
enough to justify overruling” precedent, then it is “important enough to
apply retroactively.” Ante, at 16. (If that were my claim, this dissent
would be far shorter.) Rather, the overruling of precedent—and more,
the justifications given to support that overruling—are elements to con-
sider when deciding on a rule’s watershed status. Or, as I say above, “a
first clue.” Here, that clue cuts against the majority: Ramos overturned
precedent (rather than just announcing a new rule) on grounds strikingly
reminiscent of Teague’s criteria for watershed status. Still more clues,
pointing in the same direction, appear in the coming pages . . . .
6 EDWARDS v. VANNOY
KAGAN, J., dissenting
the Founding: To obtain a conviction, “unanimity in the ver-
dict of the jury is indispensable.” Id., at ___ (slip op., at 6).
If a rule so understood isn’t a watershed one, then noth-
ing is. (And that is, of course, what the majority eventually
says.) Once more, from the quotations just above: “funda-
mental,” “essential,” “vital,” “indispensable.” No wonder to-
day’s majority declares a new-found aversion to “adjec-
tives”—or, as a concurring opinion says, “all these words.”
Ante, at 10; ante, at 10 (GORSUCH, J., concurring). The una-
nimity rule, as Ramos described it, is as “bedrock” as bed-
rock comes. Teague, 489 U. S., at 315 (plurality opinion).
It is as grounded in the Nation’s constitutional traditions—
with centuries-old practice becoming part of the Sixth
Amendment’s original meaning. And it is as central to the
Nation’s idea of a fair and reliable guilty verdict. When can
the State punish a defendant for committing a crime? Re-
turn again to Ramos, this time going back to Blackstone:
Only when “the truth of [an] accusation” is “confirmed by
the unanimous suffrage” of a jury “of his equals and neigh-
bours.” 590 U. S., at ___ (slip op., at 4) (quoting 4 Commen-
taries on the Laws of England 343 (1769)). For only then is
the jury’s finding of guilt certain enough—secure enough,
mistake-proof enough—to take away the person’s freedom.
Twice before, this Court retroactively applied rules that
are similarly integral to jury verdicts. First, in Ivan V. v.
City of New York, 407 U. S. 203, 204 (1972) (per curiam), we
gave “complete retroactive effect” to the rule of In re Win-
ship, 397 U. S. 358 (1970), that a jury must find guilt “be-
yond a reasonable doubt.” Like Ramos, Winship rested on
an “ancient” legal tradition incorporated into the Constitu-
tion. 397 U. S., at 361. As in Ramos, that tradition served
to “safeguard men” from “unjust convictions, with resulting
forfeitures” of freedom. 397 U. S., at 362. And as in Ramos,
that protection plays a “vital” part in “the American scheme
of criminal procedure.” 397 U. S., at 363–364. With all that
established, the Ivan V. Court needed just two pages to hold
Cite as: 593 U. S. ____ (2021) 7
KAGAN, J., dissenting
Winship retroactive, highlighting the reasonable-doubt
standard’s “indispensable” role in “reducing the risk” of
wrongful convictions. 407 U. S., at 204–205. Second, in
Brown v. Louisiana, 447 U. S. 323 (1980), we retroactively
applied the rule of Burch v. Louisiana, 441 U. S. 130 (1979),
that a six-person guilty verdict must be unanimous. Think
about that for a moment: We held retroactive a unanimity
requirement, no different from the one here save that it ap-
plied to a smaller jury. The reasoning should by now sound
familiar. Allowing conviction by a non-unanimous jury “im-
pair[s]” the “purpose and functioning of the jury,” under-
mining the Sixth Amendment’s very “essence.” Brown, 447
U. S., at 331 (plurality opinion). It “raises serious doubts
about the fairness of [a] trial.” Id., at 335, n. 13. And it
fails to “assure the reliability of [a guilty] verdict.” Id., at
334. So when a jury has divided, as when it has failed to
apply the reasonable-doubt standard, “there has been no
jury verdict within the meaning of the Sixth Amendment.”
Sullivan v. Louisiana, 508 U. S. 275, 280 (1993).4
——————
4 The majority argues that Ivan V. and Brown applied these new rules
only to cases on direct appeal. See ante, at 13, n. 5. But that isn’t right.
Although Ivan V. itself involved a direct appeal, the Court has made clear
that the “complete retroactive effect” Ivan V. gave Winship included
cases in habeas. See, e.g., United States v. Johnson, 457 U. S. 537, 562–
563, n. 21 (1982). And similarly, lower courts uniformly understood
Brown to govern habeas cases, even though a concurring opinion (which
supplied the ruling’s fifth and sixth votes) addressed only cases on direct
appeal. See, e.g., Atkins v. Listi, 625 F. 2d 525, 526 (CA5 1980); see also
Brown, 447 U. S., at 337 (opinion of Powell, J., joined by Stevens, J.).
Those applications to habeas cases make sense because the Court of that
time did not often distinguish in its retroactivity rulings between direct
and collateral review. See Stovall v. Denno, 388 U. S. 293, 300–301
(1967). For that reason, the majority must fall back on the argument
that “Brown and Ivan V. were pre-Teague decisions” and “Teague tight-
ened the previous standard” for retroactivity. Ante, at 13, n. 5. That is
true enough, see supra, at 3, n. 2, but irrelevant here given Brown and
Ivan V’s reasoning. As just noted, each of those decisions said everything
a court would say today in designating a new rule “watershed”—in
essence, that the rule is central to the process of fairly deciding on a
8 EDWARDS v. VANNOY
KAGAN, J., dissenting
And something still more supports retroactivity here, for
the opinions in Ramos (unlike in Winship or Burch) relied
on a strong claim about racial injustice. The Court detailed
the origins of Louisiana’s and Oregon’s non-unanimity
rules, locating them (respectively) in a convention to “estab-
lish the supremacy of the white race” and “the rise of the
Ku Klux Klan.” 590 U. S., at ___ (slip op., at 2) (internal
quotation marks omitted). Those rules, the Court ex-
plained, were meant “to dilute the influence [on juries] of
racial, ethnic, and religious minorities”—and particularly,
“to ensure that African-American juror service would be
meaningless.” Ibid. (internal quotation marks omitted).
Two concurring opinions linked that history to current
practice. “In light of the[ir] racist origins,” JUSTICE
KAVANAUGH stated, “it is no surprise that non-unanimous
juries can make a difference”—that “[t]hen and now” they
can “negate the votes of black jurors, especially in cases
with black defendants.” Id., at ___ (slip op., at 13); see id.,
at ___ (SOTOMAYOR, J.) (slip op., at 4). But that statement
precludes today’s result. If the old rule functioned “as an
engine of discrimination against black defendants,” id., at
___ (KAVANAUGH, J.) (slip op., at 13), its replacement must
“implicat[e]” (as watershed rules do) “the fundamental fair-
ness and accuracy of the criminal proceeding,” Beard, 542
U. S., at 417 (internal quotation marks omitted). Or as
JUSTICE KAVANAUGH put the point more concretely, the
unanimity rule then helps prevent “racial prejudice” from
resulting in wrongful convictions. Ramos, 590 U. S., at ___
(slip op., at 15). The rule should therefore apply not just
forward but back, to all convictions rendered absent its pro-
tection.
II
The majority argues in reply that the jury unanimity rule
——————
defendant’s guilt.
Cite as: 593 U. S. ____ (2021) 9
KAGAN, J., dissenting
is not so fundamental because . . . . Well, no, scratch that.
Actually, the majority doesn’t contest anything I’ve said
about the foundations and functions of the unanimity re-
quirement. Nor could the majority reasonably do so. For
everything I’ve said about the unanimity rule comes
straight out of Ramos’s majority and concurring opinions.
Just check the citations: I’ve added barely a word to what
those opinions (often with soaring rhetoric) proclaim. Start
with history. The ancient foundations of the unanimous
jury rule? Check. The inclusion of that rule in the Sixth
Amendment’s original meaning? Check. Now go to func-
tion. The fundamental (or bedrock or central) role of the
unanimous jury in the American system of criminal justice?
Check. The way unanimity figures in ensuring fairness in
criminal trials and protecting against wrongful guilty ver-
dicts? Check. The link between those purposes and safe-
guarding the jury system from (past and present) racial
prejudice? Check. In sum: As to every feature of the una-
nimity rule conceivably relevant to watershed status, Ra-
mos has already given the answer—check, check, check—
and today’s majority can say nothing to the contrary.5
——————
5 The majority does try to say that the plurality opinion in Ramos none-
theless “plainly foreshadowed today’s decision” by noting that Teague’s
watershed test was “demanding by design,” in recognition of the States’
reliance interests. Ante, at 16–17 (internal quotation marks omitted);
see also ante, at 17–19 (repeating the assertion twice more). But the
Ramos plurality’s description of the watershed test was nothing more
than objective fact: Yes, the watershed test was purposefully demanding.
As to whether the watershed test was so demanding as to exclude the
jury unanimity rule, here is what the plurality had to say: “Whether the
right to jury unanimity applies to cases on collateral review is a question
for a future case where the parties will have a chance to brief the issue
and we will benefit from their adversarial presentation.” Ramos, 590
U. S., at ___ (slip op., at 24). Not a lot of “plain[ ] foreshadow[ing]” there.
Only a fair bit of wisdom about how to resolve legal issues—which, as I’ll
later discuss, the majority could usefully have considered before overrul-
ing the watershed exception. See infra, at 13.
10 EDWARDS v. VANNOY
KAGAN, J., dissenting
Instead, the majority relies on decisions holding non-ret-
roactive various other—even though dissimilar—proce-
dural rules. In making that argument from past practice,
the majority adopts two discrete tactics. Call the first
“throw everything against the wall.” Call the second “slice
and dice.” Neither can avail to render the jury unanimity
rule anything less than what Ramos thought it—as the ma-
jority concedes, “momentous.” Ante, at 14.
As its first move, the majority lists as many decisions
holding rules non-retroactive as it can muster. See ante, at
11–12 (reviewing a “long line of cases”). The premise here
is that sheer volume matters: The majority presents the
catalog as if every rule is as important as every other and
as if comparing any to the unanimity requirement is beside
the point. But that idea founders on this Court’s constant
refrain that watershed rules are only a small subset of pro-
cedural rules. See, e.g., Graham v. Collins, 506 U. S. 461,
478 (1993). For under that view (as under the very meaning
of “watershed”), nothing could be less surprising than that
non-watershed rules greatly outnumber watershed ones.
That inexorable fact cannot refute the designation of any
given rule—much less of jury unanimity—as watershed.
And the majority’s kitchen-sink list becomes yet less proba-
tive of the issue here because most of its bulk comes from
decisions on sentencing. See ante, at 11 (citing Beard, 542
U. S., at 408; O’Dell v. Netherland, 521 U. S. 151, 153
(1997); Lambrix v. Singletary, 520 U. S. 518, 540 (1997);
Sawyer v. Smith, 497 U. S. 227, 229 (1990); Schriro v. Sum-
merlin, 542 U. S. 348, 352 (2004)). But Teague itself ex-
plains why sentencing procedures are not watershed: A wa-
tershed rule, the Court said there, must go to the jury’s
“determination of innocence or guilt.” 489 U. S., at 313 (plu-
rality opinion); see Beard, 542 U. S., at 417. So the major-
ity’s indiscriminate inventory of non-retroactive rules can-
not get it home.
Cite as: 593 U. S. ____ (2021) 11
KAGAN, J., dissenting
Enter the majority’s second stratagem, which tries to con-
quer by dividing. Here, the majority picks out “three as-
pects of Ramos” pointing toward watershed status, and
names one prior decision to match each of the three. Ante,
at 12. So in addressing the unanimity rule’s “significance,”
the majority notes that the Court once held the jury-trial
right non-retroactive. Ante, at 12–13 (citing DeStefano v.
Woods, 392 U. S. 631, 633 (1968) (per curiam) and Duncan
v. Louisiana, 391 U. S. 145 (1968)). In tackling Ramos’s re-
turn to “original meaning,” the majority points to our deci-
sion that an originalist rule about hearsay evidence should
not apply backward. Ante, at 13 (citing Whorton, 549 U. S.,
at 421 and Crawford v. Washington, 541 U. S. 36 (2004)).
And in discussing Ramos’s role in “prevent[ing] racial dis-
crimination,” the majority invokes our denial of retroactiv-
ity to a rule making it easier to prove race-based peremp-
tory strikes. Ante, at 13–14 (citing Allen v. Hardy, 478 U. S.
255, 261 (1986) (per curiam) and Batson v. Kentucky, 476
U. S. 79 (1986)).
What the majority doesn’t find—or even pretend to—is
any decision corresponding to Ramos on all of those dimen-
sions. Take just a pair of examples. The Court has never
suggested that requiring a bench trial has race-based pur-
poses or effects. See DeStefano, 392 U. S., at 633–635.6
——————
6 Even on the metric of significance alone, the Court has not previously
ranked the jury-unanimity and jury-trial rights as today’s majority does.
As earlier noted, the Court in Brown found a unanimity rule retroactive
despite its earlier holding that the jury-trial right was not. See supra, at
6–7. The Court explained that the accuracy and fairness concerns raised
by divided juries—where, by definition, at least one person retains rea-
sonable doubt—exceed those arising from judicial verdicts. See Brown,
447 U. S., at 334–335, n. 13 (plurality opinion). In insisting otherwise,
the majority falls prey to a common greater-includes-the-lesser fallacy—
akin to the view that if a State can eliminate a jury, it can impose jury
rules of whatever kind it likes. See ante, at 12–13 (reasoning that the
treatment of a “broader” right controls that of a “subsidiary” right);
Brown, 447 U. S., at 334–335, n. 13 (rejecting precisely that view).
12 EDWARDS v. VANNOY
KAGAN, J., dissenting
Similarly, the Court thought its new rule on hearsay evi-
dence of less than towering import: Calling the rule “limited
in scope,” we doubted that it would have any effect on the
“accuracy of factfinding.” Whorton, 549 U. S., at 419. I’ll
resist making like points about other permutations because
the main point here is a general one. The majority must
slice and dice in this way—dividing Ramos into three for
purposes of comparison—because it cannot find any rule
analogous to jury unanimity on all relevant fronts. And
that is for a simple reason: No procedure adopted since
Teague so comprehensively fulfills that decision’s criteria
for retroactivity. If any rule is watershed, it is jury una-
nimity. See supra, at 6.
So the majority is left to overrule Teague’s holding on wa-
tershed rules.7 On the last page or so of its merits discus-
sion (before it turns to pre-butting this dissent), the major-
ity eliminates the watershed exception, declaring it “long
past time” to do so. Ante, at 15. Teague had said there
would not be “many” (retroactive) watershed rules. 489
U. S., at 313 (plurality opinion). The majority now says
there will be none at all. If that is so, of course, jury una-
nimity cannot be watershed. Finally, the majority offers an
——————
7 In describing the majority as overruling Teague, I do not mean it over-
rules only Teague. That decision doesn’t stand alone in stating the wa-
tershed exception as governing law. As I count, the Court has recited the
exception 17 more times before today. See Montgomery v. Louisiana, 577
U. S. 190, 198 (2016); Welch v. United States, 578 U. S. 120, 128 (2016);
Chaidez v. United States, 568 U. S. 342, 347, n. 3 (2013); Danforth, 552
U. S., at 266, 274–275; Whorton v. Bockting, 549 U. S. 406, 416 (2007);
Beard v. Banks, 542 U. S. 406, 416–417 (2004); Horn v. Banks, 536 U. S.
266, 271, n. 5 (2002) (per curiam); Tyler v. Cain, 533 U. S. 656, 665
(2001); Bousley v. United States, 523 U. S. 614, 619–620 (1998); O’Dell v.
Netherland, 521 U. S. 151, 156–157 (1997); Lambrix v. Singletary, 520
U. S. 518, 539 (1997); Gray v. Netherland, 518 U. S. 152, 170 (1996); Cas-
pari v. Bohlen, 510 U. S. 383, 396 (1994); Graham v. Collins, 506 U. S.,
461, 477–478 (1993); Gilmore v. Taylor, 508 U. S. 333, 345 (1993); Saffle
v. Parks, 494 U. S. 484, 494–495 (1990); Sawyer v. Smith, 497 U. S. 227,
241–242 (1990).
Cite as: 593 U. S. ____ (2021) 13
KAGAN, J., dissenting
intelligible reason for declining to apply Ramos retroac-
tively.
But in taking that road, the majority breaks a core judi-
cial rule: respect for precedent. Stare decisis is a foundation
stone of the rule of law, “promot[ing] the evenhanded, pre-
dictable, and consistent development of legal principles, fos-
ter[ing] reliance on judicial decisions, and contribut[ing] to
the actual and perceived integrity of the judicial process.”
Payne v. Tennessee, 501 U. S. 808, 827 (1991). Adherence
to precedent is, of course, “not an inexorable command.”
Id., at 828. Ramos itself teaches that much. But Ramos
also shows how high stare decisis sets the bar for overruling
a prior decision. To reverse course, we insist on compelling
reasons, thorough explanation, and careful attention to
competing interests. But not here. The majority crawls un-
der, rather than leaps over, the stare decisis bar.
To begin with, no one here asked us to overrule Teague.
This Court usually confines itself to the issues raised and
briefed by the parties. See, e.g., United States v. Sineneng-
Smith, 590 U. S. ___, ___ (2020) (slip op., at 3) (discussing
“the principle of party presentation”). There may be rea-
sons to ignore that rule in one or another everyday case.
But to do so in pursuit of overturning precedent is nothing
short of extraordinary. Cf. Ramos, 590 U. S., at ___, n. 4
(KAVANAUGH, J.) (slip op., at 9, n. 4) (An “important factor”
protecting stare decisis “is that the Court typically does not
overrule a precedent unless a party requests overruling”).
We are supposed to (fairly) apply the prevailing law until a
party asks us to change it. And when a party does make
that request, we are supposed to attend to countervailing
arguments—which no one here had a chance to make. That
orderly process, skipped today, is what enables a court to
arrive at a considered decision about whether to overthrow
precedent.
Equally striking, the majority gives only the sketchiest of
14 EDWARDS v. VANNOY
KAGAN, J., dissenting
reasons for reversing Teague’s watershed exception. In de-
ciding whether to depart from precedent, the Court usually
considers—and usually at length—a familiar set of factors
capable of providing the needed special justification. See,
e.g., Knick v. Township of Scott, 588 U. S. ___, ___ (2019)
(slip op., at 20) (listing such considerations). The majority
can’t be bothered with that customary, and disciplining,
practice; it barely goes through the motions. Seldom has
this Court so casually, so off-handedly, tossed aside prece-
dent. In its page of analysis, the majority offers just one
ground for its decision—that since Teague, the Court has
not identified a new rule as watershed, and so “the pur-
ported exception has become an empty promise.” Ante, at
15. But even viewed in the abstract, that argument does
not fly. That the Court has not found a watershed rule since
Teague does not mean it could or would not in the future.
Teague itself understood that point: It saw value in the wa-
tershed exception even while recognizing that watershed
rules would be few and far between. 489 U. S., at 313 (plu-
rality opinion). And viewed in the context of this case, the
majority’s argument positively craters. For the majority to-
day comes face-to-face with a rule that perfectly fits each of
Teague’s criteria: Jury unanimity, as described in Ramos,
is watershed—even though no prior rule was. See supra, at
4–8. That airtight match between Ramos and Teague re-
futes the majority’s one stated reason for overruling the lat-
ter decision. The majority could not rely on the absence of
watershed rules to topple Teague if it had just faithfully ap-
plied that decision to this case.
In choosing otherwise, the majority imposes a steep price
for overruling Apodaca in Ramos. Taking with one hand
what it gave with the other, the Court curtails Ramos’s ef-
fects by expunging Teague’s provision for watershed rules.
And so too the Court limits the consequences of any simi-
larly fundamental change in criminal procedure that may
emerge in the future. For the first time in many decades
Cite as: 593 U. S. ____ (2021) 15
KAGAN, J., dissenting
(since long before Teague, see supra, at 3, n. 2), those con-
victed under rules found not to produce fair and reliable
verdicts will be left without recourse in federal courts.8
I would not discard Teague’s watershed exception and so
keep those unfairly convicted people from getting new tri-
als. Instead, I would accept the consequences of last Term’s
holding in Ramos. A decision like that comes with a prom-
ise, or at any rate should. If the right to a unanimous jury
is so fundamental—if a verdict rendered by a divided jury
is “no verdict at all”—then Thedrick Edwards should not
spend his life behind bars over two jurors’ opposition. I re-
spectfully dissent.
——————
8 The majority’s final claim is that it is properly immune from this crit-
icism—that I cannot “turn around and impugn” its ruling—because
“criminal defendants as a group are better off under Ramos and today’s
decision, taken together, than they would have been if [my] dissenting
view had prevailed in Ramos.” Ante, at 19. The suggestion is surprising.
It treats judging as scorekeeping—and more, as scorekeeping about how
much our decisions, or the aggregate of them, benefit a particular kind
of party. I see the matter differently. Judges should take cases one at a
time, and do their best in each to apply the relevant legal rules. And
when judges err, others should point out where they went astray. No one
gets to bank capital for future cases; no one’s past decisions insulate
them from criticism. The focus always is, or should be, getting the case
before us right.