Today, a district court's habeas corpus review of the constitutionality of a state criminal conviction and the Supreme Court's direct review of the same question are nearly identical. Last Term, in Wright v. West, an otherwise mundane criminal procedure case, the Supreme Court rewrote the question presented to ask whether the parity between federal habeas corpus and direct appellate review should be destroyed. The Court proposed abandoning in habeas corpus an important trait shared by the two modes of review – de novo consideration of legal and mixed legal-factual questions.
To those who value meaningful habeas corpus review, the Court's order augured Apocalypse Now. The seeming momentousness of the Court's action was enhanced by its timing. Just three weeks before, the Senate had come within a few votes of ending a Republican filibuster and passing a habeas corpus reform bill, previously adopted by the House, that rejected a Bush Administration proposal to replace de novo review with deferential review of state court determinations of law. The Court's sua sponte order requesting briefing on a question presented by neither the parties nor the case thus arrogated to the Court an issue that the political branches otherwise might have, but have not since, settled.
Despite ominous signals from the Court that pervasive change was afoot, the Court unanimously dispatched Wright on the mundane criminal procedure issue initially presented by the parties. But the views expressed injustice Thomas' plurality opinion (joined by Chief Justice Rehnquist and Justice Scalia) and the Court's nearly simultaneous grants of certiorari in two cases raising similar issues may well portend Apocalypse Next Time. That Justice O'Connor (joined by Justices Blackmun and Stevens) responded to Justice Thomas' singular brief in support of deferential review with a point-by-point refutation – supported on one of those points by Justice Kennedy's separate opinion – only enhances the sense that battle lines are forming for an impending habeas corpus Armageddon. It is against that possibility that this Article is deployed.
James S. Liebman,
Apocalypse Next Time?: The Anachronistic Attack on Habeas Corpus/Direct Review Parity,
Colum. L. Rev
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