Back-from-the-Dead Attack on Habeas Corpus Reform

Like a bad horror movie, a monster we thought we had killed in a past episode is back. The monster is the notion that the most important element of Congress’s 1996 reform of federal habeas corpus violates Article III of the Constitution because it binds federal courts to state courts’ interpretation of the Constitution, precluding the federal court from exercising independent judgment. In a nutshell, the law requires that when a defendant’s constitutional claim has been decided on the merits in state court, a federal court is precluded from nullifying that judgment on habeas corpus unless the state court was clearly wrong based on U.S. Supreme Court precedent.

In 1998, Columbia Law Review published an issue devoted to habeas corpus. James Liebman and William Ryan advanced the thesis described above in “Some Effectual Power”: The Quantity and Quality of Decisionmaking Required of the Federal Courts, 98 Colum. L. Rev. 696. I wrote the response article, Habeas Corpus, Relitigation, and The Legislative Power, 98 Colum. L. Rev. 888.

The Supreme Court resolved the issue in Williams v. Taylor, 529 U.S. 362, 411 (2000). The resolution left a lot to be desired, but the result was that 28 U.S.C. § 2254(d) was enforced as the major reform it was intended to be, not watered down to a minor change based on the supposed constitutional limitation.

Williams was a badly fractured decision, the kind you have to pick through carefully to see what is actually the holding of the majority. Justice Stevens wrote the lead opinion, which was the opinion of the Court in parts I, III, and IV and the bottom-line conclusion that Williams would get habeas corpus relief. But part II of Stevens’s opinion is, in effect, a dissent, and this is the part that matters most in terms of precedent. On that point, part II of Justice O’Connor’s concurring opinion is the opinion of the Court.

Despite the fury with which the constitutional question was debated in the briefs, neither opinion really grapples with it. Neither of the above articles is cited in any of the opinions. Justice Stevens seemed to be receptive to Liebman’s thesis in the limited sense of using it to interpret the issue away:

A construction of AEDPA that would require the federal courts to cede this authority to the courts of the States would be inconsistent with the practice that federal judges have traditionally followed in discharging their duties under Article III of the Constitution. If Congress had intended to require such an important change in the exercise of our jurisdiction, we believe it would have spoken with much greater clarity than is found in the text of AEDPA.

Still, that is a long way from saying that even if Congress truly did intend this major change it would be unconstitutional.

Justice O’Connor’s opinion approaches the question as purely one of statutory interpretation.

I suspect that in the initial lineup this part of Justice O’Connor’s opinion did not command a majority, and that Chief Justice Rehnquist and Justices Scalia and Thomas joined it late in the process, making it the opinion of the Court. She uses “I” in expressing her opinions on the issues, which is normal for concurrences and dissents but not used by justices writing the opinion of the Court. Had her opinion been drafted as the opinion of the Court on the main point from the beginning, I suspect she would have addressed the constitutional issue as well.

Even so, Williams was regarded as having settled the matter, and the constitutional attacks on §2254(d) shriveled up and appeared to be dead.

So why is the monster back? A decision about administrative law? Really? Yes, really.

In 2024, the Supreme Court decided in Loper Bright Enterprises v. Raimondo, 603 U.S. 369, that federal courts would no longer defer to federal agencies’ interpretation of the laws they administer, but the courts would return to exercising independent judgment as to the meaning of the laws. The opinion does refer to the original understanding that the interpretation of laws was properly the special province of the judicial branch. Ultimately, though, the basis of decision is the Administrative Procedure Act (APA), a law enacted specifically as a check on administrative agencies.

As relevant here, Section 706 directs that “[t]o the extent necessary to decision and when presented, the
reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U. S. C. § 706. It further requires courts to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . not in accordance with law.” § 706(2)(A).

The key holding is this: “The deference that Chevron requires of courts reviewing agency action cannot be squared with the APA.”

And what does this have to do with a law regarding when courts can reopen and redecide issues already decided by other courts. Nothing. Doctrines about when courts will or will not reconsider issues already decided in another case by another court go back centuries. They have names such as “res judicata” and “collateral estoppel.”

Even so, later in 2024, an article was published in the Columbia Human Rights Law Review titled Loper Bright and the Great Writ. The authors are two senior members of pro-defendant academia: Anthony Amsterdam and — you guessed it — James Liebman.

Why are they wrong? Many reasons, most basically conflating habeas corpus with appeals. That was one of Liebman’s primary errors in 1998, see my article at page 892, and it still is.

A petition for a writ of habeas corpus is not a continuation of the criminal case. It is not an appeal. It is a new, civil lawsuit against the jailer, claiming that the prisoner is being held illegally and demanding his release.

The custodian must justify keeping the prisoner in custody. “I am holding the prisoner in state prison because he was sentenced to prison by the Superior Court upon conviction for murder” is, on its face, a complete and legal justification. So the question then is under what circumstances the habeas corpus court can order release despite such a judgment. That is a question of the law of remedies and of collateral attacks on judgments. These laws are generally within the full control of the legislative branch.

In the Founding Era, a habeas corpus petition by a prisoner confined pursuant to a final judgment of conviction was fundamentally different from a petition by someone confined without such a judgment. The second group included people confined by the executive authority with no judicial action at all and those confined pretrial by order of a court.

Two classic opinions by Chief Justice Marshall illustrate the difference. In Ex parte Bollman, an alleged conspirator in the Aaron Burr plot had been jailed on the order of the circuit court to stand trial for treason. The Supreme Court ordered him released because the acts he was accused of did not amount to treason. Along the way, the court held that this use of habeas corpus to effectively review and reverse the circuit court’s commitment order was sufficiently “appellate” to fit within the court’s constitutional limit to appellate cases only with very few exceptions.

A very different result followed 23 years later in Ex parte Watkins, involving a sticky-fingered treasury official convicted by the circuit court. Watkins had constitutional claims, both double jeopardy and a substantive claim that his conduct could not be a federal crime. The Supreme Court refused to review the merits of his claims. He had been convicted in a judgment that rejected his arguments. That was a final judgment of the matter, binding on all other courts, including the Supreme Court. If Congress had given the court jurisdiction to hear an appeal of the judgment it could have considered the merits, but jurisdiction to hear a habeas corpus petition did not give such authority. A different rule applied to the judgments of “inferior” courts of limited jurisdiction, such as justices of the peace, but for courts of general jurisdiction the judgment was final, even if erroneous.

This writ is, as has been said, in.the nature of a writ of error which brings up the body of the prisoner with the cause of commitment. The court can undoubtedly inquire into the sufficiency of that cause; but if it be the judgment of a court of competent jurisdiction, especially a judgment withdrawn by law from the revision of this court, is not that judgment in itself sufficient cause? Can the court, upon this writ, look beyond the judgment, and re-examine the charges on which it was rendered. A judgment, in its nature, concludes the subject on which it is rendered, and pronounces the law of the case. The judgment of a court of record whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it.

And later in the opinion …

Without looking into the indictments under which prosecution against the petitioner was conducted, we are unanimously the opinion, that the judgment of a court of general criminal jurisdiction justifies his imprisonment, and that the writ of habeas corpus ought not to be awarded.

And what do Amsterdam and Liebman have to say about Watkins? They don’t discuss it in the text of their article at all. They have two minor and somewhat misleading citations in footnotes 142 and 534 and an outright false short description in Appendix B, case 42: “equating ‘legality’ with constitutionality, while withholding review of non-constitutional criminal procedure issues.” To see that Watkins’s issues are indeed constitutional, you have to go the circuit court case. But I did that in my article, of which Liebman is well aware. And surely the learned professors are aware that the Supreme Court interpreted Watkins in much the same way just two years ago in Jones v. Hendrix.

Amsterdam and Liebman’s article is long and requires a full-length response. But the points noted above are sufficient to indicate that their thesis is deeply flawed. Congress could, if it wanted, take the law all the way back to Watkins and make the judgment of a court of general jurisdiction fully binding on the habeas court. It can surely adopt a modified rule of res judicata, making the state court judgment mostly binding but with an escape valve for clear errors. Nothing in Loper Bright changes any of this.