The Supreme Court’s Runaway AEDPA Train–And What Can Be Done About It Via Collateral Judicial Review. (Yes, this is technical language, but bear with me. I explain it.)

UPDATE: Elena Kagan served as an Associate White House Council in the Clinton administration in 1995-96, when AEDPA was being drafted and negotiated.



“Freedom” does not include actual physical non-imprisonment; to the contrary, “freedom” means states’–or actually, state courts’–and prosecutors’ freedom to violate criminal defendants’ constitutional rights, to their heart’s content.

— Me, Angry Bear, Apr. 5

For about 24 hours this week, specifically between Tuesday morning and Wednesday morning, I thought that might be about to change.  The issue in Tuesday’s big affirmative action case, Scheutte v. BAMN, was not actually affirmative action.* It was instead whether a state voter initiative that amends the Constitution and that singles out minority races erects unconstitutionally high barriers to racial minorities’ practical ability to obtain a change in that policy, because it removes the possibility of gaining a change through the normal political and governmental processes.

Kennedy wrote the plurality opinion for himself, Roberts and Alito. Roberts also wrote a separate concurring opinion.  Breyer joined only in the outcome, writing a separate opinion only for himself. Scalia, joined by Thomas, wrote a separate opinion concurring in the judgment. Sotomayor, joined by Ginsburg, wrote a dissenting opinion.  Kagan did not participate.

All the news stories you’ve read or will read about this opinion will focus largely or entirely on the affirmative action angle.  But no one could accuse us here at AB of being a news site.  No, here, we do analysis.  Mostly.  And my analysis of Kennedy’s opinion in Schuette v. BAMN(unlike Roberts’ concurring opinion and Scalia’s dissent) is that it has two central purposes, neither of them immediately about affirmative action.

At the risk of seeming to see everything in the universe as related to Citizens United and McCutcheon, or to Hobby Lobby and Conestoga Wood–which I’m certain are related to Citizens United and McCutcheon–Kennedy’s opinion in BAMN (as it will be known, shorthand) strikes me largely as a barely-veiled defense of Citizens United and McCutcheon:

The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendmentdynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.

Ah, yes. It’s about First Amendment dynamics.  And the right to participate in the political process.

But not entirely about First Amendment dynamics and the right to participate in the political process.  It’s also about–quite a bit about, actually– Kennedy’s other favorite meme: that federalism (i.e., states are sovereigns) = freedom.  Which The Weekly Standard’s Adam White says is a theme Kennedy attributes to James Madison.  It also is a theme that I’ve mocked repeatedly here at AB as worthy of Lewis Carroll (although White doesn’t note that). Not to mention George Orwell, although I have in fact at times mentioned him and Kennedy’s federalism = freedom schtik in the same sentence. White doesn’t note that, either, but he does predict that federalism = freedom will determine Hobby Lobby and Conestoga Wood, since Kennedy will be the swing-or-not vote.  Federalism = freedom multitasks.

I explained one of the multitasks a few days ago in a comment to a post here at AB by Bill H (a.k.a. run75441) about Ruben ‘Hurricane’ Carter on the day Carter’s death was announced.  Bill began his post, titled “Hurricane,” with a quote from a song by Bob Dylan and Carter himself. The rest of his post read:

Bob Dylan and Hurricane Carter collaborated on this song about Hurricane Carter who was wrongfully convicted for murder with the testimonies of two other thieves by an all white jury. In 1976, he was released briefly, then convicted again, and returned to prison for another 9 years. U.S. District Judge H. Lee Sarokin, who wrote that Carter’s prosecution had been “predicated upon an appeal to racism rather than reason, and concealment rather than disclosure” released Carter permanently from prison November 1985. Former boxer Rubin ‘Hurricane’ Carter dies at age 76.

After his final release, Rubin “Hurricane” Carter “became the first executive director of the Association in Defence of the Wrongly Convicted, serving in the post between 1993 and 2004. He became highly respected as an activist for the wrongly convicted, and his work personally impacted many attorneys.”

Hurricane died at 76 years of age.

My comment said:

You don’t understand, run. It’s called “freedom!” Defined by Justice Kennedy, et al., as the right of state courts to trample even the most basic of constitutional rights in order to wrongly deprive people of their freedom. Kennedy says it’s part of the structure of American government as established in the first three Articles of the Constitution, which, he said, trump the Amendments, including the Bill of Rights and the Fourteenth. But, again, this structure applies only to what happens in state courts, not to what state legislatures enact.

Oh, wait. You DO understand. You’re one of the few who do. And you also know that because of a truly evil federal statute enacted in 1996 and signed by Bill Clinton when he was running for reelection, federal judges like Lee Sarokin lost their “jurisdiction” to throw out state-court criminal convictions, as a practical matter no matter what. And that the Supreme Court, led by Kennedy and now apparently Alito, have gotten the Court to effectively rewrite was already an onerous law into one that actually was not intended by congress and that Clinton would not have signed and that is patently unconstitutional. It’s called “freedom,” run. Freedom.

Then again, there aren’t any judges on the bench like Lee Sarokin anymore anyway.

You know how I feel about this issue.

To which Bill responded:


I wish I did not know what I know. I have paid with the loss of a son.

I know. Bill knows I know, and said so in another comment in the threat.  Bill and I are friends offline, and I was involved (directly, at the appellate stage and indirectly at the habeas and “cert. petition” stages, which were handled by a constitutional law professor) in that case.  One day, maybe soon, I’ll write in depth about what actually happened in the case, using pseudonyms for most of the players.  But not for all of them.  And the crackhead lawyer that Bill alludes to in a follow-up comment in that thread (and elsewhere) will not be the only one without a pseudonym. Additional candidates for pseudonym-lessness are the prosecutor; the expert-in- “forensics” faux expert, presented by the prosecution, whose expertise was gained  by attendance at two one-hour seminars during her Ph.D. candidacy internship many years before, at which the subject was discussed (there is no such thing as a generic expert in “forensics”); the trial judge; the token Democratic state appellate judge-cum-Bush-federal-district-judge-appointee-as-part-of-a-long-in-the-making-deal-that-she-was-campaigning-to-become-a-part-of; the Clinton-appointee federal district judge who later told an attorney in the case that he just “didn’t wanna rule against the State”; and the Clinton-appointee liberal Circuit Court of Appeals judgewhose baby-boomer-patented gender ideology prevents her from ever siding with the criminal defendant in this particular type of case, and who wrote the 2-1 unpublished opinion.

The judge who wrote the strongly-worded dissent was appointed by Jimmy Carter. The judge who joined the Clinton appointee is a district (trial-level) judge “sitting by designation” (don’t ask) of the chief of the circuit (appellate-level) court, as per a rampantly abused federal statute that requires the chief judge to aver that this is a judicial emergency (or something) in order to invoke the statute.  Not under oath, though.

But this post is about BAMN.  So for now, I’ll just say that Kennedy’s opinion relies extensively upon a 2011 opinion of his in a case called Bond v. U.S. in which he enunciated most expansively his federalism = freedom claim.  And in Bond–a bizarre case in which a woman tried and convicted in federal court under a federal terrorism statute for actions that really just constituted an oddly contrived state-criminal-law assault against her ex-best-friend whom her husband was sleeping with–it did.

But it almost never does. It does in Bond–or will anyway; the case is back at the Supreme Court this term, was argued last fall, and is about to be decided in an opinion by Kennedy–only by happenstance.  Bond was prosecuted in federal, not state, court, by a federal prosecutor whose use of the terrorism statute is as breathtaking as Kennedy thinks it is.  (I already know the outcome because James Madison told me.  I call him Jim when we communicate, by the way.  He likes the informality.)

To be clear–because it is important to be, on this–the state-courts-but-not-state-legislatures-are-sovereigns juggernaut has for decades now extended well beyond state-law criminal cases to a slew of types of state civil litigation, including child-custody or visitation rights, adult-guardianship and conservatorship, and professional licensure.  In matters that are of profoundly personal importance and that truly trample basic human dignity–very much including of the elderly, who may be denied the right to retain counsel and even to attend his own competency hearing, and whose close relationships with family members, friends, and longtime colleagues may be spontaneously and categorically severed without his knowledge, or to decide what state he will live in, and how his financial assets will be used–the Supreme Court has fabricated legal doctrines in the name of federalism, in the name of James Madison, and of course in the name of freedom, that remove federal-court “jurisdiction” to intercede.

These elderly folks and other actual individuals whose lives are dramatically affected by the de facto removal of basic procedural and (very) substantive constitutional rights in the name of federalism are, after all, neither ExxonMobil nor Sprint Communications.  Nor are they an anti-abortion group or a some other rightwing hobbyhorse group or corporation (I can’t remember the specifics, or even the name of the case) in a case argued earlier this year in which Alito expressed dismay that the party may have no right even to get into federal court.  No, sir.  No, ma’am.  Jim Madison, who walks a narrow tightrope on such matters, would be appalled.  But it passes his muster that only mega-corporations, represented by Washington-based Supreme Court $1,000-per-billable-hour “specialists,” or rightwing folks represented pro bono by a Conservative Movement lawyer, have access to the Supreme Court itself in order to have those metastasized jurisdictional-federalism doctrines narrowed, should have access to federal court, especially to the Supreme one.  No one else need apply. Or can afford to anyway.

In BAMN, Kennedy included statements that strike me as stunning departures from his freedom-means-state-courts’-freedom-to-violate-criminal -defendants’-constitutional-rights-to-their-heart’s-content-because-that’s-what-federalism-requires mantra. In what I think is the opinion’s seminal sentence, he said that “[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.”

The entire thrust of the opinion is that the Constitution’s very purpose is to secure individual rights, not just as against the federal government but as against government at any level. He then cites as examples two cases challenging state laws–Brown v. Board of Education and Texas v. Johnson (flag-burning statute)–and one case against the federal government, Silverman v. United States, challenging a wrongful home invasion by a federal law enforcement officer.

For the 24-hour period after the release of BAMN, I pretended not to notice that Brown and Johnson both struck down state statutes; they did not concern a constitutional violation that occurred in state court.  I chose to believe, until further notice by him, that Kennedy would no longer claim that federalism necessarily = freedom and that he no longer thinks James Madison thought wrongful conviction in a state criminal proceeding is freedom.  And that he himself no longer thinks it is. But I did not actually expect that the current conservative majority on the court suddenly will become consistent in applying its stated principles, irrespective of whose political and ideological ox is being gored by it in the particular case at issue. And 24 hours later Kennedy joined a breathtakingly appalling opinion written by Scalia, in a case called White v. Woodall, that provided the further notice.

As did Elena Kagan, who has spent her four-year tenure on the Court making clear that she not only has no understanding of constitutional precepts in habeas corpus jurisprudence, nor any knowledge of Congress’s actual intent when it enacted that 1996 statute (known by its acronym as AEDPA), but that she won’t trouble herself anytime soon to inquire about it. (Why is this woman pegged as brilliant? I’m too dimwitted to figure that out, which is why I ask the question.  Please don’t think the question is rhetorical.)

What dismays SCOTUSblog guest-writer Jordan Steiker in his analysis today of Scalia’s opinion in Woodall is the same thing that struck me almost dumb yesterday when I read the opinion. The part of the Court’s “syllabus” (its own summary of the opinion) summarizes it as:

(b) Respondent contends that the state court was unreasonable in refusing to extend a governing legal principle to a context in which it should have controlled, but this Court has never adopted such a rule. Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court’s precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error. The appropriate time to consider, as a matter of first impression, whether Carter, Estelle, and Mitchell require a penalty-phase no-adverse-inference instruction would be on direct review, not in a habeas case governed by § 2254(d). Pp. 9-12.

This is diametrically backwards.  True, the Court has never adopted such a rule. But Congress did, in the statute itself. I’m quite sure that there is nothing even remotely suggestive in the statutory history of AEDPA, in Clinton’s understanding of the bill he was signing into law, or in the language of the statute itself, as necessarily premised upon then-normal understanding of the words and phrases that the statute uses and upon the norms of constitutional jurisprudence at that time. Scalia himself rejects statutory history as a basis for statutory interpretation, except when he uses it himself as he did in his dissent in the ACA/Obamacare case two years ago. But for someone who’s built an entire public persona on claims to “originalism” interpretation–that the Constitution must be interpreted as though it were still the Founding Fathers’ era–this casual segue into a refusal to consider the longstanding jurisprudential norms that underlay final enactment of AEDPA in 1996 is just plain sleazy.

Sleazier still–absolutely breathtaking, really–is this “Who? Me?” pretense that the Supreme Court agrees to hear cases on direct appeal from state-court criminal convictions.  It can, of course.  But it almost never does.  It is not a court of “error correction,” as Scalia has noted many times, except in AEDPA cases, when it serves as exactly that, regularly reversing lower-federal-court habeas-petition grants, in the name of freedom of states to violate individuals’ constitutional rights as they wish.  Yes, indeed, as Scalia emphasized, the Supreme Court back in 2003, in a 5-4 opinion by O’Connor in a case called Lockyear v. Andrade, held that AEDPA was intended to preclude new constitutional rights through federal-court habeas review of state-court convictions. But that begs the question of what is a new constitutional right, and of what Congress meant by this preclusion.

It also begs the question of the constitutionality of AEDPA as the Supreme Court interprets that statute, and the Court’s interpretation of it inWoodall provides further clarity that this issue should be presented in separate litigation whose sole purpose is to challenge the constitutionality of AEDPA as interpreted by the Court.  If the Court is correct in its interpretation of the statute as effectively foreclosing access to federal-court–any federal court, at any level–by state-court criminal defendants in order to argue for a new rule of constitutional law, this surely violates the First Amendment’s petition clause and the Fifth Amendment’s due process clause.  It also violates the equal protection component of that Fifth Amendment clause under Supreme Court precedent, vis-a-vis federal-court criminal defendants, who clearly have the right to do so. And if, as I believe, the Court’s interpretation of AEDPA is nothing but a runaway train, then the train violates the doctrine of separation of powers whose freedom attributes Kennedy praises with religious dedication.

To a startling degree, a hallmark of the Roberts Court as it progresses is its abject sleaziness.

Back in 2006 or so, when I was deeply involved in Bill’s son’s case and was framing the constitutional arguments, I exchanged emails with Harvard law professor Richard Fallon, whose law review article about what are known as collateral challenges (civil lawsuits raising the issue) to the constitutionality of a statute as interpreted and applied in a particular criminal case, was cited favorably in a 2003 opinion by Justice Souter in a case called Sabri v. United States.  A ground I included in the appeal was that a state statute pertaining to certain types of defenses, at least as widely interpreted by the state’s criminal defense bar as mandated by a particular state supreme court opinion, unconstitutionally precluded a particular direct defense (critical in this case) and forced the defense to be made in inappropriate and deeply misleading language and also reversed the burden of proof regarding it.  I summarized the situation in my email to Prof. Fallon and asked whether he thought it was possible to file a collateral challenge in federal court. He said he thought it was premature to do so but that ultimately it probably could be filed, if necessary. The state appellate court confirmed that the lawyers’ interpretation of the state supreme court case interpreting the statute was correct, and the state Supreme Court refused to hear the case.

My hope is that, now, armed with the opinion in Woodall, a collateral challenge to AEDPA’s constitutionality will be filed, whether by Woodall or someone else. Or by many someone elses. And I hope they invoke McCutcheonBAMN and James Madison.  I can vouch for the James Madison part.


*[Sentence typo-corrected to reflect that although this post was started yesterday, it was not finished and posted until today.  I.e., now that it’s Thursday, Tuesday is no longer “yesterday.”]

**Cross-posted here at The Law of the Jungle.