Friday, February 22, 2008

The Supreme Court (Danforth opinion), Ohio and Missouri make news this week in the Habeas and Residency Restriction arenas. Get your update from here of course, thanks to Doc Berman.

On Danforth, the headliner here says it all (THANKS SCOTUSBLOG). Was that supposed to be a good thing I wonder, Wanda? To expand the "criminal rights" -- I'm sure it is a magnanimous thing for the Court to allow the States to do that. But read on, and we find we are actually talking about something akin to the retrospective application, or as some say, the "retroactive benefit" of Supreme Court rulings. Chief Justice Roberts dissented, in which Justice Kennedy joined.

Is it only coincidence that retrospective application of laws is also in the spotlight in those Residency challenges? Don't let the big words fool you. What this involves is determining whether the rules of the game can/will be changed in the middle of the fourth quarter, sort of like counting the Florida and Michigan delegates after the DNC said they wouldn't before the vote (or non-vote), because the state's delegations broke, (transgressed?) the Party rules.

That depends, of course, on what the word Justice means to you. The Framers'? I heard something about "restoring habeas" (Obama) in last night's debate with Hilary. Was he speaking only about Guantanomo detainees? Barrack also mentioned the phrase "wrongful convictions." This is clearly something to be redressed through a pardon or a more muscular Habeas process. There must be consequences for those who would callously engage in behavior designed to produce wrongful conviction of innocent individuals.

Here is an interesting, if tangential discussion arising out of Danforth on Scotusblog's site.

“…while on your website you claim this is relevant to constitutional habeas.”

If by “constitutional habeas” you mean habeas as required by the Suspension Clause, the only point in today’s decision relevant to that question is the Court’s acknowledgment that common law habeas (and therefore the Suspension Clause) was limited to jurisdictional questions. That was once a furious historical debate, but it’s largely over, and the Fay v. Noia revisionism lies in ruins.

The primary debate over § 2254(d)– the one in the two law review articles I cited in the beginning and the one before the Ninth Circuit in Irons v. Carey — is all about the statutory writ and whether Congress can, consistently with Article III, require “deference” (actually a limited form of res judicata) to state court judgments in a class of cases where Congress could repeal the jurisdiction entirely if it chose. Today’s holding on the nature of the Teague rule is highly relevant to that debate, as I explained in comment 7, above.

And here's this one concerning Theory: "Blinking on the Bench -- How Judges Decide Cases"

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