« Owen Gallogly: Equity's Constitutional Source
Michael Ramsey
| Main | Mark Graber on Blackman & Tillman on Disqualification (with a Response from Blackman and Tillman)
Michel Ramsey »


Justice Gorsuch Plus 5 Say Brown v. Allen Was Dubious on Originalist Grounds
Michael Ramsey

In another potentially important originalist opinion from last week, Justice Gorsuch, writing for himself and five others in Brown v. Davenport, questioned the Court's 1953 habeas corpus decision in Brown v. Allen.  From his majority opinion:

Usually [i.e., historically], a prisoner could not use [habeas corpus] to challenge a final judgment of conviction issued by a court of competent jurisdiction. See, e.g., Opinion on the Writ of Habeas Corpus, Wilm. 77, 88, 97 Eng. Rep. 29, 36 (K. B. 1758). If the point of the writ was to ensure due process attended an individual’s confinement, a trial was generally considered proof he had received just that. See, e.g., Bushell’s Case, Vaugh. 135, 142–143, 124 Eng. Rep. 1006, 1009–1010 (C. P. 1670).

This traditional understanding extended from England to this country and persisted through much of our history. Asked to apply the Nation’s first habeas statute to a duly convicted prisoner, Chief Justice Marshall invoked the common-law rule that a judgment of conviction after trial was “conclusive on all the world.” Ex parte Watkins, 3 Pet. 193, 202–203 (1830). Acknowledging that Congress had authorized the Court to “inquire into the sufficiency of ” the cause of the petitioner’s detention, Marshall asked rhetorically, “is not that judgment in itself sufficient cause?” Id.,  at 202 (emphasis added); see also Ex parte Parks, 93 U. S. 18, 21–22 (1876); P. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 465–469 (1963) (Bator).

If the answer was nearly always yes, an important exception existed in both English and American law: A habeas court could grant relief if the court of conviction lacked jurisdiction over the defendant or his offense...

By 1953, however, federal habeas practice began to take on a very different shape. That year in Brown v. Allen this Court held that a state-court judgment “is not res judicata” in federal habeas proceedings with respect to a petitioner’s federal constitutional claims. 344 U. S. 443, 458 (1953). A state court may reject the petitioner’s claims after a fair hearing. No appellate court, including this one, may see fit to reverse that final judgment. Yet still, Brown suggested, a federal district court approaching the same case years later should be free to decide de novo whether the state court proceedings “resulted in a satisfactory conclusion” and to issue habeas relief if that conclusion is found wanting. Id., at 463; see also Wright, 505 U. S., at 287–288 (plurality opinion). The traditional distinction between jurisdictional defects and mere errors in adjudication no longer restrained federal habeas courts. Full-blown constitutional error correction became the order of the day.

As an aside, this is the way we learned Brown v. Allen in my federal courts class when I was in law school, except that it was regarded as a positive development.  Gorsuch doesn't call for it to be overruled, or even directly say it was wrongly decided, but he concludes that Brown v. Allen's reworking of habeas justifies later courts cutting back on the scope of the writ to compensate for Brown's expansion.

Justice Kagan had some sharp words in dissent: 

Because the majority begins with some law-chambers history, see ante, at 7–11, I do too—though fair warning: My discussion is no more relevant than the majority’s to the issue before us. Not surprisingly, neither of the parties to this small and legally mundane case thought it a suitable occasion for a from-Blackstone-onward theory of habeas practice. Yet the majority, unprompted, embarks on that project, perhaps hoping that the seeds it sows now will yield more succulent fruit in cases to come. In the majority’s story, post-conviction habeas relief was all but unavailable until the mid-20th century—when in an instant the Court in Brown v. Allen, 344 U. S. 443 (1953), upended the rules. That account repeats the views expressed in a recent concurrence, authored by the same Justice as today delivers the majority opinion. See Edwards v. Vannoy, 593 U. S. ___, ___–___ (2021) (GORSUCH, J., concurring) (slip op., at 2–8); id., at ___ (slip op., at 3) (Habeas historically “provided no recourse for a prisoner confined pursuant to a final judgment of conviction”). But the theory, in its fundamentals, is wrong. Federal courts long before Brown extended habeas relief to prisoners held in violation of the Constitution—even after a final conviction. ...


The majority tries to cram the many habeas decisions belying its position into a narrow jurisdictional “exception,” ante, at 8—but its effort does no more than reveal the peril of looking at history through a 21st-century lens. In the majority’s view, a habeas court could grant relief only “if the court of conviction lacked jurisdiction,” not if it committed “errors in adjudication.” Ante, at 8, 10. But some of the decisions the majority must contend with made no mention at all of the convicting (or sentencing) court’s jurisdiction. See, e.g., Wells, 18 How., at 308–315; Yick Wo, 118 U. S., at 365–374. And those that did so often used the word to mean something different from what it does today. The concept of “jurisdictional defects” (ante, at 9) could at that time include—rather than contrast with—constitutional errors of the kind described above.1 As one legal historian puts the point: The jurisdictional inquiry was then (though of course not now) often “merits based.” A. Woolhandler, Demodeling Habeas, 45 Stan. L. Rev. 575, 630 (1993).

She also relied in part on a forthcoming academic article -- from her footnote 2:

A forthcoming article makes much the same point in addressing the concurrence that anticipated today’s historical musings. See supra, at 2; Edwards v. Vannoy, 593 U. S. ___, ___–___ (2021) (GORSUCH, J., concurring) (slip op., at 2–8). Professor Jonathan Siegel writes that the concurrence “relies on quotations” invoking a court’s jurisdiction “without fully acknowledging the meaning that they had in their original context. [It] incorrectly ascribes to these quotations the meaning they might have if a court wrote them today. One must, however, always remember that
‘the past is a foreign country; they do things differently there.’ Historical statements must be understood in their historical context.” Habeas, History, and Hermeneutics, 64 Ariz. L. Rev. (forthcoming 2022) (draft, at 4), https://ssrn.com/abstract=3899955 (footnote omitted).