Yesterday, the Supreme Court issued its long awaited decision in Johnson v. Williams. The Court held that, for purposes of §2254(d), when a state court rules against a defendant in an opinion that rejects some of the defendant’s claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits.
I have to say that this decision has left me a little perplexed and a lot upset. My inflammatory opinion is that the Court's current antipathy towards habeas has led it to issue an opinion that is simply divorced from any conceivable purpose of habeas corpus review. While inflammatory, I believe that it is compltely justified.
Here's what I mean: For various reasons, state courts often fail to address constitutional claims in their decisions even though defendants specifically raise them. To me, the whole point of the "adjudicated on the merits" language was a check on the state courts. It basically said to them, "you can have a tremendous amount of deference, but you need to actually adjudicate the claim to get it." It encouraged the state courts to address constitutional claims. It took some of the harshness out of the restrictions on habeas review wrought by the AEDPA because it was saying that you don't need habeas review because your constitutional rights will be protected in state courts.
Now, that's not true. The state courts have permission now to ignore the constitutional issue and still get deference. I think this is going to have a deleterious effect on constitutional rights. It creates an incentive for state courts to ignore them, knowing that a critical check in the system has been loosened. It's not controversial to say that the original purpose of habeas review was to be a check on the state courts to make sure that constitutional rights were being adequately protected. This decision is clearly contrary to what habeas was originally meant to be.
But it's not even consistent with the new purported purposes of habeas under the AEDPA. This current Court has repeatedly stated that the purpose of the AEDPA was to make the state courts the primary forum for litigating constitutional claims and that habeas was just to prevent extreme malfunctions in that process. Well, how is this decision consistent with that? Under Williams, state courts don't even have to address constitutional claims and now there is a presumption that they are entitled to the super-high, "difficult to meet" deference of 2254(d). What about that logic is consistent with having the state courts as the primary forum for litigating constitutional claims? And, shouldn't the fact that the state courts failed to address a constitutional claim be evidence of a malfunction in the system? Isn't that consistent with giving the federal courts more power to step in? It's not logical. It should be the opposite.
It's nothing more than antipathy for habeas guiding the result.
Oh wait, there's the irrebutable presumption. Doesn't that make it better? The most I can say for it is that it gives petitioner's a chance. But I really have no idea how that's going to play out. I mean, why isn't that overcome when the state specifically fails to address the constitutional issue? I really have no clue at this point what else the Court is asking a petitioner to do to overcome the presumption.
At this point, I think I'd like to break out the uncommon sense meter. Try explaining to a layman that in habeas law there is a presumption that an issue was decided on the merits even though there was no actual decision on the merits on that issue. Just try. I dare you. You are going to sound pretty crazy. I think this may be a new high score on the meter. And that says a lot.
But what's most depressing about all of this is that every judge on the Court agrees with the notion that silence=adjudicated on the merits.* There is not a single judge on the Court right now that is willing to take a principled stand that federal courts should be stepping in when the state courts fail in their responsibility to address constitutional claims. It's really, really sad.
*To note, Scalia would have gone even further and not had the presumption.
One other likely casaulty of Williams is the Fourth Circuit's decision in Pearson v. Winston. In that case, the Fourth Circuit concluded that, where the state court failed to develop the factual record with respect to petitioner's claims, there was no adjudication on the merits. In that situation, there would be de novo review and the federal courts could consider new evidence. It was a logical path around the unfairness of Pinholster. I am not sure if this logic will be upheld after Williams. The cert. petition in that case was being held by the Court.* I am guessing that it's going to be GVR'd after the next conference.
*Actually, the hold in that case was what had originally gotten me worried about what was going to happen in Williams. As I originally discussed, it did not appear from the argument in Williams that the Court was going to go this far with its opinion. But there really wasn't a reason to hold Winston unless the Court was going to go in the direction that it did. Now that it has gone this far, it has an impact on what happened in that case.