Although I haven't blogged much this summer, I have been making an attempt to keep track of stuff going on in habeasland.
One thing I noticed was that, over the past couple of months, there were at least three articles in high-profile places that focused (at least in part) on habeas.
First, I saw an article by Emily Bazelon in the New York Times magazine about the most recent Supreme Court term. One of the points she was making was that Sotomayor and Kagan are becoming the foundation of the Court's liberal wing. I don't agree with that, at least when it comes to habeas. And the point that Bazelon makes here with respect to habeas is not logical:
In the 29 opinions Sotomayor wrote as a district and appeals court judge, she never once granted relief to a prisoner petitioning for a writ of habeas corpus, the appeal of last resort for the convicted. Yet this year, Sotomayor took the rare step of publicly opposing the court’s decision not to hear the petition of a Louisiana prisoner who stopped taking his H.I.V. medication to protest a prison transfer and sued for being punished with hard labor in 100-degree heat. She actually pulled this petition out of a stack of thousands that prisoners submit without lawyers, making a cause célèbre of a humble plea. With this, Sotomayor set herself up to be the court’s hard-charging liberal — à la Marshall, who liked to take his shots, diplomatic maneuvering be damned.
I agree with the first part: Sotomayor never wrote an opinion granting habeas as a lower court judge.* However, the counter example that Bazelon used was not a habeas corpus case -- it was a prisoner civil rights case, a completely different animal. So it is kind of mixing apples and oranges, among other logical problems with the sentence. I also think it's a tough sell to compare Sotomayor to Marshall.
*I wrote extensively about that during the confirmation hearings. As I showed in those posts, Bazelon's statement is true. I actually wonder if Bazelon got that info from those posts (which is okay by me; that's why I put it up).
But I am happy that somebody out there with some level of influence is encouraged by Sotomayor's decisions. I was feeling positive about her direction up through the first half of OT2010, but I was not a big fan of her work in the second half of the last term. For example, she joined the majority in Richter and then had that horrible majority opinion in Michigan v. Bryant. On the other hand, she did have a great dissent in Pinholster.
Then I saw that Linda Greenhouse had a lengthy discussion about AEDPA in a column back in July. It was done in the context of comparing Norway's reaction to homegrown terrorism vs. this country's reaction to the Oklahoma City bombing, which led to the passage of AEDPA. Here's the relevant discussion about AEDPA, it's pretty interesting:
[AEDPA] has transformed habeas corpus practice for garden-variety crimes. Its restrictions on the jurisdiction of the federal courts were sufficiently severe that the Chief Justice William H. Rehnquist and his most conservative allies felt the need to act with remarkable speed to affirm the law’s constitutionality. In May 1996, just nine days after AEDPA was signed into law, and after the court’s regular argument sessions for the term had concluded, the justices scheduled a special sitting to hear a case on whether the law’s all-but-total elimination of an inmate’s right to file more than one habeas corpus petition amounted to an unconstitutional “suspension” of habeas corpus.
Four dissenting justices (John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer) objected that the court was intervening with “unseemly haste.” But less than a month after the June 3 argument in the case, Felker v. Turpin the court ruled unanimously that the new restrictions were permissible because, despite the obstacles placed on access to the lower federal courts, the Supreme Court itself retained the right to exercise its own authority to grant an “original” habeas corpus petition. This was largely a fiction: the court had in fact not granted such a petition for 71 years before this decision, and has not granted one since, although inmates continue to file them regularly.
The Felker decision addressed only one aspect of the complicated law. There have been dozens of Supreme Court decisions since then, parsing other sections. One of the most far-reaching provisions is a section that bars federal judges from granting a habeas petition unless the state court decision that is being challenged “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.” It did not take the Supreme Court long to interpret this section as meaning that it isn’t enough for the state-court decision to be wrong; it has to be unreasonably wrong, a high bar indeed.
Finally, the LA Times discussed the Supreme Court's antagonism towards the Ninth Circuit in an article back in July. The article focuses, in part, on Judge Stephen Reinhart, who wrote the Ninth Circuit opinions in both Richter and Premo v. Moore (which were reversed on the same day).
I like this quote from the article: "The Supreme Court's conservative majority has been changing the law in habeas corpus and other constitutional protections . . . ." I obviously share that opinion. Although that sentence was not presented in the article as a direct quote from Reinhardt, I believe that is something that Reinhardt said in his defense when he was being interviewed by the person who wrote the article.
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