Taking Statutes Seriously

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.”

In 1996, Congress decided that the Court’s efforts in this regard had not gone far enough and tightened up a number of the Court’s anti-relitigation rules. Keeney was one of them. The trigger for Congress’s version was the same — the defendant failed to present his facts to the state court — but the exceptions were much tighter. Keeney was very explicit and clear that the failure it referred to included failures of defense counsel, not just the defendant personally.

Years after AEDPA, the Supreme Court poked a big hole in another procedural default rule, one of its own making, one that Congress had not addressed. In Martinez v. Ryan and Trevino v. Thaler, the Court made an exception for a single type of claim: ineffective assistance of trial counsel. For this claim alone, the Court held that ineffective assistance of the lawyer representing the defendant in his state-court collateral review of the case would be “good cause” for his failure to have presented the claim there, as distinguished from the facts supporting the claim.

Does the same gaping loophole apply to Congress’s version of a different rule? Of course not. First, Congress clearly adopted Keeney‘s definition of “fail.” The Court had already decided that in another case where that definition favored the defendant. Second, the notion that Congress was making the triggering clause more lax at the same time that it was tightening up the exception makes no sense. This act was all about tightening. Not a single word of it was for the purpose of loosening.

The Court today ruled 6-3 that the statute means what it says and decline to poke a hole in it. Justice Sotomayor, in dissent, said the Court had effectively overruled Martinez and Trevino. I wish she were right, but she is not. Those breaches in the dam are still there. But today’s decision, properly used, may limit the damage.