So, this was an interesting case that came down from the SCOTUS this week. We’ve been busy and haven’t had the time to deal with the case, at least not in the manner with which it deserves to be dealt.
Interestingly our media elite, such as at CNN, have exercised no restraint whatever in their haste to report not so much the significance of the case for people affected by it, but rather the revealing banter between the Justices in their various opinions, which collectively stretch to almost 60 pages. Which is not the lengthiest of opinions in the modern SCOTUS era, but lengthy enough. Seems that in times gone by SCOTUS was able to do much more in far fewer words.
In other words, CNN is focused on its own “legal analysts”, who in turn are focused on career-oriented gossip like the good little Ivy Leaguers they are. Indeed, if CNN is still accompanying that article with the video entitled “How are Supreme Court Justices chosen?” you’ll note, as we did, the pending rehabilitation of Jeffrey Toobin.
(Jeff ran into an excruciatingly embarrassing problem not that long ago. We find it hard to sympathize, both because the indiscretion involved seems unfathomable to us, and because Toobin thinks Edwards v. Vannoy is an occasion to talk – again, and ad nauseum – about the “impeccable” credentials of SCOTUS Justices.)
The poor schmucks who will rot in prison even though everyone now knows they shouldn’t be incarcerated at all? Who gives a shit about them? We’d rather gossip about petty sniping between the impeccably credentialed Justices than try to understand what they did and did not do to thousands of our fellow human beings.
You see the problem with our “legal analysts” (We mean, aside from their tendency to pleasure themselves on camera)? They’re so deeply mired in their own silly snobbery they miss the actual story.
We tend to the actual story here at LoS.
So what is that, in context here? Edwards holds basically, on the surface, one thing: the jury unanimity requirement that was held to apply to the states in Ramos v. Louisiana, such that a judgment of conviction for a felony after a jury trial can be valid only if the jury was unanimous, does not apply retroactively such that federal collateral relief is available to those aggrieved.*
Yet just like Ramos, which was specifically about jury unanimity but wound up being about stare decisis and Roe v. Wade for the likes of Jeffrey Toobin, so Edwards winds up being about something else as well. And what is the something else?
Federal habeas corpus.
The problem is, does Edwards really say anything we don’t already know? Kind of. It’s giving us some insight into the Justice’s positions. And for the most part, and probably unsurprisingly, it reveals that the Justices are hostile to the “Great Writ”, at least as exercised by federal courts over state court criminal convictions. Which is not to say that they are not also hostile to the Great Writ as exercised by federal courts involving federal court criminal convictions – they most certainly are, although those are called “2255 motions”, not petitions for habeas corpus.
But we digress.
Let’s string together a few choice quotes from Justice Kavanaugh’s opinion:
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)…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 essential to the operation of our criminal justice system…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 suffers, as do the victims…Put simply, the “costs imposed upon the States by retroactive application of new rules of constitutional law on habeas corpus thus generally far outweigh the benefits of this application.” Sawyer v. Smith, 497 U. S. 227, 242 (1990)
Yes, well. We might as well be re-reading Calderon v. Thompson and post about that here. Like we did just about seven years ago exactly. Obviously, Justice Kavanaugh has not come over here to read.
Let’s say a person really is innocent and was wrongly convicted and rots in prison unjustly. How does the “cost imposed upon the State” outweigh the benefit of exonerating, freeing and compensating the wrongly convicted and imprisoned? Who in their right minds thinks this question even needs to be asked?
Are SCOTUS Justices in their right mind? We wonder sometimes. And note that the majority joined this opinion.
For his part, Justice Gorsuch, concurring, plainly understood that this is yet another case about federal habeas corpus, the AEDPA, and so on. He starts with a rather lengthy and detailed review of the history of habeas corpus and its origins in England.
Notice how Teague comes up again:
Under the view that prevailed in this country for most of our history, and in England for even longer, Teague’s question 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…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 “jurisdiction,” 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 modest one. The same cannot be said for Brown v. Allen, 344 U. S. 443, 464, 478 (1953)
Turns out Justice Gorsuch doesn’t like Brown v. Allen. Interesting that he also leaves out – skips over, actually – our favorite quote from Frank v. Mangum, which we have noted before:
In the light, then, of these established rules and principles: that the due process of law guaranteed by the Fourteenth Amendment has regard to substance of right, and not to matters of form or procedure; that it is open to the courts of the United States upon an application for a writ of habeas corpus to look beyond forms and inquire into the very substance of the matter, to the extent of deciding whether the prisoner has been deprived of his liberty without due process of law, and for this purpose to inquire into jurisdictional facts, whether they appear upon the record or not; that an investigation into the case of a prisoner held in custody by a State on conviction of a criminal offense must take into consideration the entire course of proceedings in the courts of the State, and not merely a single step in those proceedings; and that it is incumbent upon the prisoner to set forth in his application a sworn statement of the facts concerning his detention and by virtue of what claim or authority he is detained; we proceed to consider the questions presented
This quote wouldn’t have bolstered his argument any, of course.
Justice Gorsuch certainly knows what he wants to say about Brown, though:
With time, these implications became clear and, as Justice Jackson predicted, Brown’s innovation proved unsustainable. The haystack just grew too large.
We debunked this claim some time ago, when it was made by Justice Scalia. The “floodgates” argument, one of the SCOTUS’ favorites, is really annoying. It’s worse than annoying when you’re on the receiving end. It’s a visceral thing with the Justices, imagining the unwashed hordes storming the courthouse and making their lives miserable when they’re sitting for their portraits.
Here’s a nice little bit of positivism from Justice Gorsuch, a little further in to his opinion:
But if the rule of law means anything, it means the final result of proceedings 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).
Apparently, the “rule of law” can incorporate falsehood after falsehood, ad infinitum, so long as the falsehoods are findings of guilt in criminal cases in state courts. Because “finality” and “floodgates”.
And here’s something even more odd:
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 of jurisdiction once it has become final.
Whither 28 U.S.C. 2254, then, which explicitly says the opposite?
Here’s the reality. In any other context, all this hokum about federalism and federal courts not disturbing state courts doesn’t matter to the Justices at all, and it hasn’t mattered to the SCOTUS since at least the 1930’s and FDR’s “New Deal”, which essentially cemented in the United States a central (as opposed to federal) government. The state governments are now, and have been for some time, essentially vassals of the “federal” government who largely administer federal funds that pass through multiple layers of bureaucracy at the federal, state and local level before they reach their intended targets, if indeed they ever do. Just for grins and giggles some time, take a little trip following “policy” and more importantly money as it winds its way through the federal Health Care Finance Administration (“HCFA”) augmented by a stop on the way down at the State Health Department, which then delegates to the County Health Department, which services whatever individuals are making claims. In theory, anyway.
All of this would have been unthinkable to the founders of the United States and is profoundly contrary to our national traditions. FFS, the same goes for the FBI, a permanent national police force, or for that matter a standing army and a military industrial complex. Our federal government, in other words, has long since assumed a general supervisory role over public life in the Republic, and in the public mind – not to mention the minds of the rulers – this is a perfectly proper state of affairs. The federal courts themselves are considered, in our hearts of hearts, “super courts” that attract only the “best and the brightest” and adjudicate every “important” question, which the lesser state courts merely administer.
But for the SCOTUS, and now especially Justice Gorsuch, there is one exception to this otherwise prevailing regime of thought: when some poor schmuck is wrongfully convicted of a crime in a state court, his life essentially taken from him whether he winds up executed or not, the state courts have failed him and he seeks relief in a federal court.
The real reason, in other words, is not that we are so, so concerned about not elevating ourselves to a perch higher than our state court counterparts; rather, it’s that the task is too “dreary” for our Very Important Federal Courts, says Justice Gorsuch. This argument reminds us of Justice Scalia likening the same task to endlessly shoveling shit out of horse stables.
Finally, this rather interesting footnote:
The dissent criticizes today’s decision as a departure from modern habeas precedent. Post, at 2; post, at 3, n. 2; post, at 12–13. But the dissent’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.”
Brown v. Allen, the 1953 case that is Justice Gorsuch’s bete noire in this opinion, was most decidedly not an out of the blue SCOTUS expansion of the availability of federal court relief for state prisoners, as Justice Gorsuch seems to think. It was consistent with precedent that had accumulated for about 20-40 years before that – at least since the 1930’s, in other words. Which of course is consistent with the FDR era history that the federal government and federal courts were now the Very Important places where all Very Important debates took place, the roots of which are even earlier. Don’t believe us? We have already demonstrated that Justice Gorsuch is largely misrepresenting Frank v. Mangum, which is a 1915 case, and pretty much stood plainly for the proposition that the federal courts will collaterally enforce federal rights over state courts on habeas review. Mooney v. Holohan, 294 US 103 (1935) was actually a habeas corpus petition seeking review of a final criminal state court judgment (California) that also originated in the SCOTUS itself, not a District Court, yet another hitherto unheard of but bound to be more and more common example of federal court oversight of state court criminal judgments. Mooney didn’t result in an out and out grant, but it was entertained, opined upon, and remanded to the state courts who were presumably chastened.
Want more, even earlier? Moore v. Dempsey in 1923. In particular, we suggest you read the dissenting opinion of Justice McReynolds and joined by Justice Sutherland. It is essentially the same point being made by Justice Gorsuch. In dissent. That is, by 1923 Justice Gorsuch’s view was already becoming quaint.
But what should really put to bed – forever – Justice Gorsuch’s views about federal habeas corpus is an ancient and, you know, what we used to call hoary principle of habeas corpus practice known as the exhaustion doctrine. The exhaustion doctrine says that you cannot seek habeas corpus relief in a federal court unless you have exhausted your remedies in the state court system and – usually – been denied review in the SCOTUS on petition for certiorari.
The necessarily true corollary, of course, is that after you have exhausted state remedies you can seek habeas corpus relief in the federal courts.
Far from being a novelty of the swinging 1960’s anything goes decade, the exhaustion doctrine appears as early as 1886 and then floats around through 1907 and by 1944 is pretty much written in stone. Here’s another in 1948.
Put another way, contrary to his contentions about “the dissent” it is Justice Gorsuch’s “history” that is highly selective and renders his position untenable. We hope he’s not serious when he sort of oddly pledges to persist in this error:
My vote in similar cases to come will, I hope, “be guided as nearly as [possible] by the principles set forth herein.”
We hope the opposite, because we sort of like Justice Gorsuch and think he’s capable of self correction.
Some days it all just seems too much, you know? Ugh.
*To tell the truth, in practical terms neither the Edwards decision nor our little critique here of it is necessarily as significant as we think, because our brief and cursory review of post-conviction proceedings in Oregon and Louisiana may support the idea that prisoners can seek relief under the state laws governing those proceedings, which appear to confer a fairly broad discretion on the state courts. That is, Edwards refuses to apply the Ramos rule retroactively for federal habeas corpus purposes, but the state courts are free to grant relief. Strange that we at LoS should mention this point when the SCOTUS doesn’t in 60+ pages, especially since many of those pages are so deferential to state courts. Not strange, of course, that the media and their legal “analysts” miss it as well: they are so imbued with the notion that only federal courts, and especially the SCOTUS with all their impeccable this and that, MATTER.