Bench Memos

NRO’s home for judicial news and analysis.

More Habeas Mischief


The Supreme Court today issued two 5-4 rulings in cases involving federal habeas petitions. In both cases, the five-justice majority consisted of Justice Kennedy and the four lockstep liberals.

In McQuiggin v. Perkins, the Court, in an opinion by Justice Ginsburg, created an “actual innocence” exception to the statute of limitations on federal habeas petitions set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Never mind, as Justice Scalia points out in his dissent, that AEDPA provides its own actual-innocence exception (one that the petitioner failed to satisfy). Scalia’s lead item in what he calls the Court’s “statutory-construction blooper reel” is the Court’s “flagrant breach of the separation of power” in concocting an exception to AEDPA’s “clear statutory command.” (As Scalia explains, in the Court’s previous rulings “actual innocence” had “been an exception only to judge-made, prudential barriers to habeas relief, or as a means of channeling judges’ statutorily conferred discretion not to apply a procedural bar.”)

A sidenote: Conservative supporters of Justice Kagan’s nomination asserted that she would be sound on statutory construction. The evidence isn’t backing them up.

In Trevino v. Thaler, the Court, in an opinion by Justice Breyer, significantly broadened a purportedly “narrow exception” that it had created just last year, in Martinez v. Ryan, to the general rule that a state prisoner who has failed to exhaust state remedies or has failed to comply with the state’s procedural requirements is not entitled to federal habeas relief unless he can show cause to excuse his default. (I’ll leave the details to the interested reader to discover.)

As Chief Justice Roberts (joined by Justice Alito) complains in his dissent, the Court in last year’s Martinez ruling (which they both joined) had been “unusually explicit about the narrowness of [its] decision” and had included “aggressively limiting language.” But today it “throws over the crisp limit [it] made so explicit just last Term” and instead adopts an “opaque and malleable” standard that will lead to “years of procedural wrangling [that] undermine the finality of sentences necessary to effective criminal justice.”

Justice Scalia’s brief dissent (joined by Justice Thomas) points out that he observed in his Martinez dissent that the Court’s “line lacks any principled basis, and will not last.” Scalia’s prophecies have often proved true, but it usually takes more than a year.

The lesson, which ought to be old news, is: Don’t be fooled by the liberal justices’ unprincipled and ad hoc limitations on their rulings. Those limitations will disappear at the first convenient opportunity.  


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