Professor Siegel's New Article Discusses Justice Gorsuch's Proposed Change in Habeas Corpus

Professor Jonathan R. Siegel
October 13, 2021


JOTWELL: The Journal of Things We Like (Lots) favorably reviewed Jonathan R. Siegel’s new article entitled “Habeas, History, and Hermeneutics.” Professor Siegel’s article, which is forthcoming in Arizona Law Review (Summer 2022) argues the following:  

"Supreme Court Justices Clarence Thomas and Neil Gorsuch recently proposed a radical shrinking of federal habeas corpus relief for state prisoners who are in custody pursuant to a final judgment of criminal conviction. They called for a return to the supposedly traditional principle that federal courts cannot grant habeas relief to such prisoners unless the state court that sentenced them lacked jurisdiction. [The article] explains that (1) this supposedly traditional principle was not, in fact, a traditional principle of habeas, and (2) even if it were, Congress has displaced it by statute. Exploring the errors in the Justices’ arguments provides valuable lessons in the proper uses of historical materials and in the hermeneutics of statutory interpretation."

In this Q&A conducted for the GW Law website, Professor Siegel discusses his research and analysis. 

Q: As the first sentence of the JOTWELL review acknowledges, "Habeas is hard." What makes habeas such a hard issue to tackle, and why did you choose to unpack it for your article, "Habeas, History, and Hermeneutics"?

Habeas is a difficult topic because of the many statutory and judicially developed conditions that limit the ability of federal courts to grant habeas relief.  There are so many rules that it is hard to keep track of all of them.

I chose to write about this topic because it is such an important part of federalism, which is the relationship between the federal government and the states. Habeas corpus ("habeas") is the writ traditionally used to challenge the lawfulness of detention. Today, the most common use of habeas is by state prisoners who are serving their sentences after being convicted of a crime in state court. Such prisoners may seek habeas from a federal district court based on the assertion that their state criminal trials violated their federal constitutional rights. If the federal court agrees, it may order the state to release or retry the prisoner.

In the recent case of Edwards v. Vannoy, Justice Gorsuch, joined by Justice Thomas, issued a concurring opinion suggesting that the availability of habeas relief for prisoners who have been convicted of crimes in state court should be drastically reduced.

If these Justices had their way, a federal district court could not issue habeas relief for such a prisoner, even if it determined that the prisoner's state trial clearly violated the prisoner's federal constitutional rights, unless the state court that tried and sentenced the prisoner lacked jurisdiction. Because the ability to seek habeas relief plays an important role in making sure that criminal defendants are afforded their rights under the Constitution, I wanted to examine the Justices' suggestion.

Q: While you acknowledge that the Court's decision in Edwards v. Vannoy may not make an impact, you explain that Justice Thomas' and Justice Gorsuch's opinions are still very significant. Can you outline what you think the long-term effect of these opinions could potentially be?

If Justice Gorsuch's opinion became the law, it would basically mean the end of habeas corpus relief for prisoners who are serving sentences imposed by state courts in criminal cases.

The current rule is that a federal district court may grant habeas relief to such a prisoner, which has the effect of requiring the state to release or retry the prisoner, if the federal court concludes that the prisoner's criminal trial in state court clearly violated the prisoner's federal constitutional rights.

Justice Gorsuch asserts that habeas relief was traditionally available to such prisoners only if the state court that sentenced them lacked jurisdiction. If that were the rule today, then no matter how clearly a state criminal trial violated the defendant's rights—for example, by not allowing the defendant to have counsel, a jury trial, the right to call witnesses, or the right to cross-examine the prosecution's witnesses—a federal court would be powerless to do anything about it.  

The defendant's only federal remedy would be to get review of the original case in the U.S. Supreme Court. But the Supreme Court only hears about 80 cases a year and, therefore, it can't possibly ensure that the Constitution is properly followed in the hundreds of thousands of criminal cases that the states decide each year. That's why the current system, in which lower federal courts have at least some ability to correct injustices in state criminal trials, is so important.

Q: Your paper states that "historical materials must be understood in historical context." In what ways would you argue that Justice Thomas' and Justice Gorsuch's opinions most significantly ignored the historical context regarding either the application of the Judiciary Act of 1789 or the application of the Habeas Corpus Act of 1867?

Justice Gorsuch's opinion asserts that the traditional (eighteenth and nineteenth century) rule was that federal courts would not award habeas relief to any prisoner serving a sentence following conviction of a crime unless the court that sentenced the prisoner lacked jurisdiction to do so. He wants to return to this allegedly traditional rule.  

My paper shows that the rule promoted by Justice Gorsuch was not really the traditional rule. It is true that many nineteenth-century federal cases said that habeas could be awarded to a prisoner serving a sentence of criminal conviction only if the sentencing court lacked jurisdiction. But what the courts did in these cases shows that they used the term "jurisdiction" to mean something quite different from what it would mean today.  

In this period, federal courts would in fact award habeas even though the sentencing court actually had jurisdiction, if the sentencing court's proceedings involved certain constitutional violations. For example, they would award habeas if the statute creating the crime of which the prisoner was found guilty was unconstitutional; if the original trial violated the rule against double jeopardy; if the original trial was incorrectly conducted by the court without a jury; or if the defendant was not properly indicted by a grand jury. In all of these cases the federal courts said that the constitutional violation deprived the sentencing court of jurisdiction. But today, while any of those errors could invalidate the original conviction, none of them would be regarded as jurisdictional.

Justice Gorsuch wants to follow what courts said in the nineteenth century about not awarding habeas relief to a prisoner serving a criminal sentence imposed by a court that had jurisdiction, but he wants to ignore that courts said this in a context in which they believed that the sentencing court lacked jurisdiction if its proceedings were unconstitutional in many ways that today would not be considered to have anything to do with jurisdiction. He is wrenching the statement about the sentencing court's "jurisdiction" from its historical context.

Q: What is your recommendation for "understanding historical context?" In your opinion, what should that context take into account?

It’s not enough to look at what courts said; you also have to consider what they actually did.  If in the past courts said, "We're doing X," but they actually did Y, then perhaps the meaning of X has changed over time. In such a case it is too simplistic to say that courts should do X today because that is what they said they did long ago.  

Habeas, History, and Hermeneutics by Jonathan R. Siegel, F. Elwood and Eleanor Davis Research Professor of Law

  • Arizona Law Review, Volume 64, Issue 2 (Summer 2022, Forthcoming)
  • GWU Law School Public Law Research Paper No. 2021-31
  • GWU Legal Studies Research Paper No. 2021-31