Echoes of the past: Judge Reinhart, Judge Lay and habeas corpus


With a tip of my hat to How Appealing, I urge federal practitioners of habeas corpus cases challenging state convictions under 28 U.S. Code § 2254 to read Stephen R. Reinhardt, 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, University of Michigan Law Review (May, 2015). The author is a judge on the Ninth Circuit Court of Appeals, and a liberal icon of the first rank.

This essay is a scathing criticism of the Supreme Court, starting with the abstract:

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.

In this age of calls for the near-total abolition of habeas 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). 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.

Reinhardt’s wonderfully written essay (that I don’t agree with) brings up the past for me. It reminds me of another liberal icon of the first rank who hailed from the high plains. Donald P. Lay was one of the longest serving chief judges of any circuit (1980-1992) and one of the youngest men ever appointed to a court of appeals.* He wrote a similar piece years ago. It was published in the Minnesota Law Review (where Lay was also the James A. Levee Professor of Criminal Procedure). See The Writ of Habeas Corpus: A Complex Procedure for a Simple Process, 77 Minn. L. Rev 1015 (1993) (unfortunately, the article sits behind the Hein pay wall).

Liberal judges like Lay and Reinhardt regard the “Great Writ” with a reverence that borders on the religious. Most of the time, I regard habeas corpus cases as being a time-consuming and futile pain in the ass.

The vast majority of habeas petitions have no merit even under the most liberal standard of review. See my earlier post entitled “The High Cost of Snipe Hunts” (noting among other things that excluding death penalty cases, only .45% of the some 16,000 federal habeas cases filed annually resulted in granting relief to the prisoner),

While I disagree with much of what Judge Reinhardt has written, his essay should be read by anyone who labors on federal habeas corpus matters. It is an important contribution to the literature on habeas corpus and an unsually frank examination of the Supreme Court’s jurisprudence on this subject.


*Lay had practiced law in Omaha, Nebraska at the time of his appointment. So had my mentor Don Ross. Despite the fact that Lay later moved his chambers to Minnesota, when I clerked for Judge Ross, Lay’s chambers, like the chambers of Judge Ross, were in Omaha. I remember once standing between the two men who disagreed on a case and doing so intentionally. I was scared shitless that the confrontation might become physical. Lay was short, very aggressive and had a temper to match. Ross was tall, taciturn and, while slow to anger, had a volcanic temper too. Thankfully, the men did not come to blows.

17 responses

  1. You might like to say where you disagree with Judge Reinhardt and where you agree.

    The problem I see is that the justice system of the USA has become infested with corruption and malpractice, offenders within law enforcement and the judiciary are being protected rather than prosecuted, and the constitutional rights of innocent citizens are being blatantly flouted.

    Perhaps an extreme view, but having studied many wrongful convictions ( which are surely only the tip of a much larger iceberg ), this conclusion seem inescapable.

  2. At first glance looks like the typical confusion of the Great Writ with the statutory action created under Section 2254. At one point right out of law school, I was tempted to do an article on the history of habeas. Most modern commentary simply ignores how limited the writ was before the Civil War as Congress created a statutory writ to protect first federal employees from being persecuted by hostile local officials to a protection of all from illegal state court action (and even that statutory writ was very limited until the federal courts began incorporating the Bill of Rights against the states).

    It’s possible to have a debate on how much the federal courts should, as a practical matter, serve as a check on state criminal justice systems, but only if you put to the side the belief that the Constitution requires vigorous review by the lower federal courts. The current system does place significant limits on reviews, but it does so because Congress and the United States Supreme Court believes that state appellate judges are for the most part competent and willing to follow the Constitution (including in some cases reading the U.S. Constitution even more broadly than the U.S. Supreme Court does).

  3. JA,

    My purpose with this post was to stimulate discussion among readers rather than as a platform for my personal views. Those views are largely beside the point. As low person on the totem pole, I am required to enforce AEDPA, and the precedents of the Eighth Circuit Court of Appeals and the Supreme Court, whether I like it (them) or not.

    That said, if you were to guess that I am a fan of AEDPA, you probably would not be wrong. I suspect the real reason that the judges like Reinhardt and Lay don’t (or Lay’s case didn’t) like AEDPA is because it reduces their power. Since I believe in a weak federal judiciary, I am not bothered by their concerns.


  4. What is the relevance of habeas before theCivil War since habeas or now 2255 was seen as rooted in the Civil War Amendments? Tony Amsterdam did write on this as I. recall. The begining of the cut back was Stone v Powell and Brennan’s dissent discuses this extensively as I recall.

  5. Judge At least in Lay’s case, I think years of dealing with NE S Ct may have influenced his approach, rather than a desire for power. Ct went through a long period of time when it did not see a conviction that did not thrill it.. Newton did not understand why Court was bound bv SCOTUS decisions in search and seizure cases though Clinton did say not to answer since the rest of them did. I know Clinton did but not so sure about the rest. More generally, given the number of ex prosecutors on State benches and the politics of various State appellate court selection [processes, a certain distrust maybe proper. A lot of State judges make you and your junior G man badge look pro defense. .

  6. Repentinglawyer,

    Picky, but section 2255 relates to federal crimes, while the habeas statute for state crimes remains section 2254. All the best.


  7. Old age is a terrible cross made worse by the disrespect of the young. You will find out boy judge when you are an old fart. I knew the difference when I wore a younger man’s cloths.

  8. Actually 2255 was put in to create a habeas like remedy in the sentencing district in part to cut down on prisoners filing habeas when ever they were incarcerated in a new Circuit. There was one chap sentenced under the Assimilated Crimes Act for rape on a National Battlefield who challenged federal jurisdiction over the rape site in 5 or 6 Circuits.

  9. Repentinglawyer,

    To be specific, 2255 was meant to avoid section 2241 filings challenging convictions in distant districts–those that did not impose the sentence. Section 2241 can still be used to challenge issues of confinement (like good time) where the prisoner is lodged at the time of the filing.

    No disrespect intended (or at least not very much). All the best.


  10. Judge Reinhardt: “[T]he Court has made a series of decisions not compelled by statute or precedent that has had the harmful practical effect of limiting the ability of all persons to receive the protections of the Constitution.”

    “We have to be free to rape your five-year-old grand-daughter with impunity so that we can protect her from being raped.” This is the law of official immunity, in all its blunt and irrational glory. The government can do whatever it pleases to you, and there is nothing you can do about it. You can’t find it in the Constitution or the canon of common sense, but it is “the law” because five men in robes say so. The Supreme Court has methodically reduced American citizens to mere thralls.

    This isn’t a liberal or conservative issue. It is a question of whether the Constitution protects us from the caprice of public officials. So, whatever happened to the concept that a law repugnant to the Constitution is void?

  11. Judge, Actually mild given junior G man, but since I last looked at the legislative history of 2255 in 1963, I do not feel much pain. Fred Rodell did say that Fed Cts was like crocheting which only appealed to those who worried about dropping a stitch.

  12. The idea of the rule of law was modeled on habeas and the famous Wolfe Tone case and the idea that an aggrieved citizen could demand the legal justification of hurtful official action. However since it was an Irish case Scalia probably would disapprove of mentioning it.

  13. Reinhardt’s claim that he fastidiously trys to comply with Supreme Court precedent when applying AEDPA is pure BS. It also flys in the face of his prior defiant comment regarding Supreme Court review of his opinions: “They can’t catch them all.”

    Reinhardt’s allegation that state court judges can’t do justice (in criminal cases) because they don’t have lifetime tenure is offensive to any member of a state’s judiciary. Indeed, one can make the argument that federal judges can ignore Supreme Court precedent (as Reinhardt and his colleague Wardlaw regularly do) because the worst that could happen (if the Supreme Court “catches” their defiance) will be yet another Supreme Court slap down.

    Nevertheless, I agree with RGK, the article is a worthwhile read if you are interested in federal habeas or qualified immunity. Or if you want to count how many disingenuous statements Reinhardt makes.

  14. Hard to see how Circus applies to lesser courts given the 5 Republicans in the clown car at SCOTUS.

  15. RGK, thanks for explaining.

    The ability of the Circuit courts to correct wrongful convictions was useful. However does not work in a timely way as cases such as Debra Milke and Anthony Ray Hinton demonstrate.

    I put it to you that some State-level appeal courts have become dysfunctional, lazy and corrupt, and far too willing to rubber stamp unsafe convictions.

    The doctrine of “harmless error” coupled with jurors who are selected for stupidity is an issue, as is the practise of having directly elected prosecutors and judges, rather than sticking to the principles of representative democracy. Mixing justice and politics in this way is disastrous in my opinion.

    The current public mood is illustrated by the headline on this article:


    There is a perception that your country is turning into a police and prison state, and this needs to be addressed.

  16. The relevance of habeas before the Civil War is that the protection for the writ of habeas corpus is part of the original text of the Constitution. I agree that the authority for Section 2254 is section 5 of the Fourteenth Amendment, but what Congress gives under Section 5 of the Fourteenth Amendment, Congress can taketh away.

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