Is Retroactivity a Choice-of-Law Question or a Remedial Question?
In the U.S. Supreme Court, two Justices–Chief Justice Roberts and Justice Kennedy–agreed with the Minnesota Supreme Court. Crawford was an interpretation of federal constitutional law, they said, and therefore the question whether to apply it retroactively is also a question of federal law. And citing precedents going back to the early Eighteenth Century, the Chief Justice said that the Supreme Court, not state courts, decides federal questions. The 7-2 majority, in an opinion by Justice Stevens, did not exactly disagree with the Chief Justice’s general point. If retroactivity were a pure question of federal law, Stevens acknowledged, then the Minnesota courts would not be free to fashion a view of retroactivity that differed from the Supreme Court’s view. But the majority did not view retroactivity as a purely federal question. Whether to apply Crawford or any other federal decision retroactively is a question of remedy, the majority said, and “the remedy a state court chooses to pr
