UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 32, No. 3SPRING 2009
AEDPA, Saucier, and the Stronger Case for Rights-First Constitutional Adjudication
Stephen I. Vladeck(fn*)
I. Introduction
More than a dozen times in the past five Terms, the Supreme Court has reversed an appellate court's decision granting post-conviction habeas relief to a state prisoner: not because it concluded that the state court had acted correctly, but because the state court's error was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court,(fn1) which is the standard of review prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).(fn2) Moreover, the Court decided all of these cases without clarifying which legal rules actually applied to the habeas proceedings, leaving central questions of constitutional criminal procedure unanswered.
Emblematic of this trend is the January 2008 decision in Wright v. Van Patten,(fn3) in which the Court summarily reversed(fn4) a Seventh Circuit decision granting habeas relief based on the petitioner's claim of ineffective assistance of counsel.(fn5) Specifically, Van Patten claimed that his Sixth Amendment rights had been violated because his lawyer participated in his plea colloquy by speakerphone. Applying the two-prong, circumstance-specific test for ineffectiveness enunciated by the Supreme Court in Strickland v. Washington,(fn6) the Wisconsin Court of Appeals rejected Van Patten's claim, concluding that there was no evidence that the physical absence of his counsel resulted in prejudice.(fn7) On post-conviction habeas corpus, the U.S. District Court for the Eastern District of Wisconsin agreed.(fn8)
The Seventh Circuit reversed,(fn9) concluding that the Strickland test was the incorrect standard to apply to Van Patten's claim, and that the Wisconsin Court of Appeals should have instead applied the categorical presumption of ineffectiveness articulated in United States v. Cronic.(fn10) Because the state court's error was not harmless, and because Cronic was unquestionably "clearly established" precedent, the Seventh Circuit concluded that habeas relief was warranted.(fn11)
On certiorari, the Supreme Court took no position on whether Cronic or Strickland was the appropriate test to apply in such circumstances. It merely noted that the answer to that question was unclear, and so it could not have been "contrary to or an unreasonable application of clearly established federal law, as determined by the Supreme Court, for the Wisconsin state courts to apply the Strickland standard.(fn12) Van Patten lost, in other words, not because there was no precedent, but because it was unclear which precedent applied.
In a postscript to its brief opinion, the Van Patten Court agreed with Wisconsin's argument that the Seventh Circuit could have reached the same result in a direct federal appeal, but emphasized that "[o]ur own consideration of the merits of telephone practice ... is for another day, and this case turns on the recognition that no clearly established law contrary to the state court's conclusion justifies collateral relief."(fn13) Put another way, even if the Court was convinced that the Seventh Circuit was correct-that Cronic is the appropriate test to apply in such cases- it refused to say so, resting its decision on its belief that the Wisconsin state courts did not act unreasonably.(fn14)
Van Patten is hardly alone in this regard. Every year brings with it a new wave of scholarship attacking the deferential review called for by AEDPA,(fn15) and new opinions by lower court judges expressing their frustration with the minimalist inquiry they are allowed to undertake in post-conviction habeas cases(fn16)-an inquiry centered on the reasonableness of trial court errors, as opposed to the actual impact of those errors on the fairness or accuracy of the underlying proceedings.(fn17)
An equally constraining aspect of AEDPA warrants criticism. In addition to affirming the deferential nature of review under AEDPA, the Supreme Court has concluded that only its holdings, not dicta, may provide the basis for relief under the statute.(fn18) In other words, the Justices themselves pretermitted the possibility that, even while denying relief in AEDPA cases, the Supreme Court might still enunciate forward-looking principles of constitutional law. Because the Court can only grant relief under AEDPA if the result was foreordained by its precedents, the federal courts in general, and the Supreme Court in particular, will never have the opportunity to make new law in cases in which AEDPA denies relief.(fn19) (That is, unless the reviewing court reached the error question first-a step that this article will argue is necessarily antecedent to the question of whether the law providing the basis for the state court's error was "clearly established" by the Supreme Court.)
The effect of these two shortcomings-the Court's decisions not to reach the issue of error where the lower court's action survives AEDPA's deferential standard of review, and the Court's decision that only holdings and not dicta can provide the basis for relief under AEDPA-is significant. Until the Court does reach questions like the one it avoided in Van Patten, criminal defendants across the country may be convicted using procedures suffering from the same identified (and litigated) constitutional defect. And, because of AEDPA and the Court's unwillingness to apply its holdings retroactivity, it will be all but impossible for those defendants to benefit from such a future Supreme Court decision unless their direct appeal is still pending when the later decision is handed down.(fn20) For example, defendants convicted in the time between when Van Patten is decided (call it T0) and the hypothetical future case where the Court actually does reach the issue (call it T1) will be unable to prevail in their habeas petitions on an argument similar to that advanced by Van Patten-that Cronic, and not Strickland, governs their claim of ineffective assistance of counsel. So even if it was unnecessary to reach the constitutional question in Van Patten's case- because he would lose under AEDPA anyway-the Court's avoidance at T0 may well preclude relief for defendants convicted between T0 and T1
As the Van Patten Court itself suggested, the other obvious (and traditional) way around AEDPA would be for the Court to articulate the relevant substantive legal standard in the context of direct criminal appeals, in which AEDPA's deferential standard of review does not apply.(fn21) But as theoretically appealing as that option is, its practical likelihood runs squarely into the (shrinking) size of the Supreme Court's docket,(fn22) and the correspondingly small percentage of granted cases arising out of direct criminal appeals, especially criminal appeals from the state courts.(fn23) In short, even a more concerted effort on the Justices' part to hear direct criminal appeals from the state courts would at best mitigate, rather than obviate, the significance of the Court's ability to enunciate new principles of constitutional law in the context of postconviction review.
In other contexts, the Court has shown far less reluctance to reach questions of constitutional law even if they may not be necessary to the case subjudice. Most familiarly, in the context of its qualified immunity jurisprudence, the Court for a time endorsed a rigid "order-of-battle" pursuant to which reviewing courts would decide whether the plaintiff had alleged a violation of a constitutional right before deciding whether that right was "clearly established,"(fn24) or whether the officer was entitled to immunity. That is, the courts were required to reach the "rights" question as a necessary antecedent to whether the defendant could be held liable.(fn25)
Named the "Saucier sequence" for the 2001 decision that formalized it, this order of decision-making was the subject of substantial criticism from commentators, lower court judges, and even some of the Justices responsible for it.(fn26) These critiques culminated in the Court's January 2009 decision in Pearson v. Callahan,(fn27) in which the Justices unanimously overruled Saucier. As Justice Alito wrote for the Court, [W]hile the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.(fn28)
At the heart of the critiques that led to Saucier's overruling in Callahan are a series of inter-related concerns: that Saucier required courts to unnecessarily decide questions of constitutional law; that such decisions were often "cert-proof if the defendant prevailed on qualified immunity grounds anyway; that it forced courts to decide constitutional questions on underdeveloped factual records; and so on. Although the Court opined that courts generally should reach the rights question first in qualified immunity cases, the tide of scholarly opinion seems to support the Court's rejection of the mandatory methodological approach that Saucier commanded.(f...
