The demise of habeas corpus and the rise of qualified immunity: the court's ever increasing limitations on the development and enforcement of constitutional rights and some particularly unfortunate consequences.

• Author: Reinhardt, Stephen R.

TABLE OF CONTENTS INTRODUCTION I. THE DEMISE OF HABEAS CORPUS A. The Evolution from Independent Review to Near-Total Deference to State Courts B. Respect for State Courts at the Expense of Constitutional Right C. The Lack of "Clearly Established Federal Law" D. Pinholster and the Court's Barriers to Establishing Factual Cause for Relief E. The Court's Exceptional Treatment of Habeas Law F. How Far We Have Strayed II. The Rise of Qualified Immunity III. Particularly Unfortunate Consequences CONCLUSION CODA INTRODUCTION

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a series of recent Supreme Court rulings that aim ultimately at eliminating that judicial method of protecting individual rights. (1)

In this age of calls for the near-total abolition of habeas (2) and scathing rebukes of judges who fail to toe the not-so-hidden party line, it is easy to lose sight of how we got here. It is convenient to blame it on inevitable historical or jurisprudential trends, or to insist that it followed necessarily from passage of the Antiterrorism and Effective Death Penalty Act (AEDPA). (3) One can then proclaim that there is no reasonable alternative to the Supreme Court's present construction of that statute, even though any participant in our habeas regime would have to agree that it resembles a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the Writ as it would be for a Supreme Court Justice to strike out Babe Ruth, Joe DiMaggio, and Mickey Mantle in succession--even with the Chief Justice calling balls and strikes. (4)

Whatever the virtues of the inevitability arguments, accuracy is not one of them. As a judge on the United States Court of Appeals for the Ninth Circuit--a court conservatives love to deride for its attachment to protecting the constitutional rights of persons accused or convicted of crimes (5)--I have been an involuntary participant in the shaping of modern habeas law, although not in the form that I believe the Constitution demands. In my experience, the true story is not the version that apologists for the drastic reduction of the powers of the Writ put forth. Rather, it is a tale defined by a series of highly questionable Supreme Court rulings that took a new statute, AEDPA--misconceived at its inception and born of misguided political ambition--and repeatedly interpreted it in the most inflexible and unyielding manner possible. Exalting notions of comity and finality above all else, and treating the constitutional rights at stake with the same lack of concern manifest elsewhere in their recent jurisprudence, (6) the conservative justices who form the majority on the current Supreme Court--joined more and more frequently, for differing reasons, by their more moderate colleagues (7)-embarked on a path designed to render constitutional rulings by state courts nearly unreviewable by the federal judiciary.

In order to fully comprehend the story of the Supreme Court's postAEDPA habeas jurisprudence, it is necessary to understand that most of our current habeas law is the product of choices, many of them seriously ill-advised, made by a deeply conservative Court. (8) The upshot will be a more fundamental appreciation of the disagreement between the Supreme Court and the lower courts in the shaping of habeas law, as well as an understanding of the Court's role in turning AEDPA into a body of law that might well disturb even some of its strongest congressional proponents. (9) It is also helpful to that understanding to view the Court's habeas cases more broadly, in light of the Court's decisions erecting similar limitations on the enforcement of constitutional rights that have been violated by law enforcement officers or other state or local officials.

In the latter case, it is the law of qualified immunity that by the Court's adoption of drastic new restrictions on finding civil liability, and even more so on declaring when police misconduct is unconstitutional, forecloses the development of constitutional law in areas where such development is most needed. (10) Regrettably, these growing restrictions both in the area of habeas law and of qualified immunity contribute to the growing belief by members of minority groups that our legal system does not afford fair and equal treatment to all.

Although far from the most important, but perhaps the most interesting, lesson to students of the workings of the federal courts may be the refutation of the false impression given by some, both in and out of the judicial world, that the United States Court of Appeals for the Ninth Circuit and other circuit courts refuse to follow the habeas and other decisions of the Supreme Court. (11) Just the opposite is true. We in the appellate courts dutifully follow the existing Supreme Court law. However, as demonstrated later in this Essay, the Supreme Court often reverses us not for failing to apply the law it has previously enunciated, but by creating new, previously undeclared, and extreme rules that serve to limit the ability of federal courts to enforce the rights embodied in the Constitution. An unfortunate collateral consequence is that, because of the way our justice system works, those limitations have disproportionate effects on the rights of minorities to obtain equal treatment and equal justice under the law.

1. THE DEMISE OF HABEAS CORPUS

   Although in most cases it serves our society honorably and admirably, the modern American criminal justice system all too often does not produce fair and just outcomes. In fact, recent studies as well as newly developed scientific techniques (12) suggest that it fails to live up to our ideals more frequently than most of us would hope. Some of the major structural problems include insensitivity to the causes and effects of racial discrimination, (13) inadequate public defender services, and a lack of adequate oversight and transparency in law enforcement. These problems manifest themselves in any number of ways, from racially disparate enforcement of the criminal law, to trials marked by fundamental constitutional errors, to the tragedy of wrongful convictions.

   Federal judges encounter these issues in many ways. We see them in trials and appeals, sometimes squarely presented and other times at the edges of a more typical claim of error. We read about them in briefs and newspapers, we discuss them with each other, and on occasion we testify before Congress or the United States Sentencing Commission. For the most part, though, at least on the Ninth Circuit, we come face to face with many of the most serious problems in our criminal justice system when addressing petitions for habeas corpus. Among the most troublesome of these cases are those that concern whether a person whom a state seeks to execute has any recourse in the federal system.

   It is no secret that some judges on our court take a broader view of when habeas relief is warranted under AEDPA than do a majority of the Supreme Court Justices. Although often framed as the tale of a lawless circuit, this difference in orientation is more properly understood as a division between those who would unduly limit the writ of habeas corpus, and those who think that the law, even after AEDPA, does not require (and in fact forbids) so harsh a result. The real story is one of a Supreme Court that has gone to an extreme, reading AEDPA in unwarranted and unpredictable ways in its effort to overly restrict habeas relief, and of a circuit that has largely adhered to moderate principles in tune with the statutory and constitutional law governing habeas. To be clear, we follow Supreme Court precedent faithfully when we decide habeas cases. What we do not do is attempt to anticipate the extreme rules that the Court often devises to deny habeas relief to persons who may have been convicted or sentenced unconstitutionally; nor do we adopt those rules before the Court tells us that we must do so. Thus, while it is no surprise that our reversal rate on habeas matters is high, it is important to understand that we are reversed as often as we are, not because we defy the Court, but because we do not leap to anticipate or find new ways not demanded by AEDPA itself or by the Court's already established precedent, to render habeas of as little value as it is currently being rendered. In short, we apply what we believe to be fair and just constitutional principles until the Supreme Court forbids us to do so. That is what is too often missing from the critics' assessment of the Ninth Circuit and its relationship to the Supreme Court in habeas cases.

   1. The Evolution from Independent Review to Near-Total Deference to State Courts

      A system in which federal habeas courts do not provide independent review of constitutional claims previously litigated in state court was by no means inevitable. Indeed, prior to AEDPA, if a prisoner had a claim that was cognizable on habeas, and he was able to navigate the procedural obstacles imposed by the Burger and Rehnquist Courts, that prisoner generally had the right to have a federal court independently review his constitutional claim. In other words, irrespective of the state court's view of the merits of the prisoner's constitutional claim, a federal court had the authority, yes even the duty, to grant a writ of habeas corpus to a prisoner who was imprisoned or...