Are Acts of Congress the law of the land, to be respected by the courts and implemented as intended, or are they merely inconvenient obstacles to the policies preferred by judges, to be danced around at will? That was the unstated question beneath the case of Shinn v. Ramirez, No. 20-1009, decided by the Supreme Court today.
The case involves the long-standing policy question of when a federal court hearing a habeas corpus petition by a state prisoner can second-guess the judgment of the state courts in a case already fully litigated there. The answer to that question has ebbed and flowed throughout American history, as relative confidence in federal v. state courts has varied. The answer has varied from “never” (1789) to “nearly always” (1963) and various points in between. Congress and the Supreme Court have both had their roles, but on this aspect of habeas corpus the Court has always acknowledged that Congress is boss, at least nominally.
From the mid-1970s to the early 1990s, the Supreme Court was gradually tightening up on relitigation, pulling back reins that had been loosened in the 1950s and 1960s. In 1992, the Court decided in Keeney v. Tamayo-Reyes that a habeas petitioner who wanted an evidentiary hearing in federal court to present evidence that he could have presented in state court but failed to would not get one unless he showed good cause for his previous failure and resulting prejudice.
This is one of a number of rules that I call “speak now or forever hold your peace” rules. When the system provides a time and forum to make your claim, you have to make it then and there or lose it. Without such rules, Yogi Berra notwithstanding, a case isn’t over even when it’s over. More prosaically, these rules are called “procedural default rules.” Continue reading . . .