Essay in Michigan Law Review garners national attention

By Katie Vloet
U-M Law

An essay in the Michigan Law Review is garnering national media attention. "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"-was written by the Hon. Stephen R. Reinhardt, circuit judge on the U.S. Court of Appeals for the Ninth Circuit. He writes the high court has "repeatedly interpreted" the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996 "in the most inflexible and unyielding manner possible" so that "constitutional rulings by state courts [are] nearly unreviewable by the federal judiciary."

"In a recent reversal of a grant of habeas relief to a state prisoner, Justice [Antonin] Scalia, speaking for the court, asserted that the Sixth Circuit 'disregarded the limitations of 28 U.S.C. § 2254(d)-a provision of law that some federal judges find too confining, but that all federal judges must obey.' I would put it differently," Reinhardt writes. "The problem is not that the federal judges of whom he speaks find § 2254(d) too confining. The problem is that, whenever a federal court gives a reasonable interpretation of AEDPA, the Supreme Court reverses it with a new, extreme construction that is not justified by the text of the statute or the court's precedent, and that further limits the constitutional rights of those who come before our courts."

The New Yorker quoted the MLR essay in a story, "The Destruction of Defendants' Rights," which calls the AEDPA "surely one of the worst statutes ever passed by Congress and signed into law by a president" and states that it "gutted the federal writ of habeas corpus, which a federal court can use to order the release of someone wrongly imprisoned." The story also asserts that the Supreme Court's decisions in AEDPA cases out of the Ninth Circuit have sometimes appeared to be directed at Reinhardt.

The New Yorker story points out that the Supreme Court recently overturned a Ninth Circuit decision, written by Reinhardt, calling for the retrial or release of California death row inmate Hector Ayala. In the MLR essay, the story says, "Reinhardt made clear that the disagreement in the Ayala case is not between one side arguing for safeguarding a prisoner's constitutional rights and the other insisting on respect for the state's criminal-justice process. Rather, it is about a callous, well-developed body of Supreme Court law interpreting AEDPA and how much deference-submission, really-to that process the court's habeas jurisprudence requires. While AEDPA was 'misconceived at its inception,' Reinhardt writes, the 'deeply conservative' Supreme Court has 'repeatedly interpreted it in the most inflexible and unyielding manner possible' so that 'constitutional rulings by state courts' are 'nearly unreviewable by the federal judiciary.' The appeals courts, including the Ninth Circuit, 'dutifully follow the existing Supreme Court law.' The 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.'"

The essay is quoted in a story in The New York Times Magazine, "The Law That Keeps People on Death Row Despite Flawed Trials." Reinhardt, the story says, "writes that the court has fashioned '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.' The maze has expanded since [Justice Samuel] Alito succeeded Justice Sandra Day O'Connor in 2006, moving the court to the right on criminal justice, among other issues. Over the course of the court's 200713 terms, Reinhardt found that the Supreme Court had ruled against prisoners in all but two of the 28 habeas petitions it had considered."

An article in the San Francisco Chronicle, "Judge disputes state's execution of convicted rapist-murderer," focuses on the case of Thomas Thompson, one of 13 Californians executed since 1992 under the current death penalty law "and the only one whose guilt has been seriously disputed." Reinhardt, the story says, argues in the MLR essay that Thompson was "likely innocent."

The essay also is the most-viewed on the MLR website, says editor-in-chief Megan DeMarco.

In the Coda, Reinhardt writes, "I still believe that 'the arc of the moral universe is long, but it bends toward justice.

"I would hope that some of the recent errors the court has made will be corrected as the arc of history unfolds and that the court will in the long run recognize that we are a single nation, with a Constitution dedicated to promoting the general welfare, ensuring the equality of all individuals, and guaranteeing liberty and justice to all-a Constitution that lives and breathes as our great nation evolves in light of the moral, economic, and scientific forces that shape our destiny."

Published: Mon, Aug 24, 2015

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