The justices’ troubling message to lower courts

Civil Rights and Wrongs is a recurring series by Daniel Harawa covering criminal justice and civil rights cases before the court.

In two recent decisions, the Supreme Court summarily reversed – that is, reversed without full briefing or oral argument – the U.S. Court of Appeals for the 4th Circuit’s grants of habeas relief to state petitioners. First, in Clark v. Sweeney, the court held that the 4th Circuit violated the “party-presentation principle” when it granted habeas relief on a basis the petitioner “never asserted.” Then, in Klein v. Martin, the court held that the 4th Circuit was not sufficiently deferential to the state court’s decision denying post-conviction relief as required by the Antiterrorism and Effective Death Penalty Act of 1996.

That the Supreme Court reversed in two habeas cases may not come as much of a surprise. Habeas petitioners have not fared well before the Supreme Court for some time. But the repeated summary reversal of grants of habeas relief sends a more troubling message: that federal habeas relief should largely be understood as beyond reach.

This is important because federal habeas corpus serves as the mechanism by which a person convicted in state court may ask a federal court to review whether that conviction was obtained in violation of the Constitution. It is not just a second appeal. Instead, it is an essential safeguard that has historically served as a check when state courts failed to enforce federal constitutional rights.

In reviewing state court convictions, there is no shortage of language from the Supreme Court emphasizing how deferential federal habeas review must be. A federal court may not “substitute … its own judgment for that of the state court.” The standard for reviewing state court decisions is “highly deferential.” State-court decisions are entitled to “the benefit of the doubt.” A state court decision must be more than just wrong for a federal court to grant habeas relief; it must be “objectively unreasonable.” I could go on.

To think that federal courts have failed to absorb these warnings beggars belief. According to one study, non-capital habeas petitions are granted in fewer than one percent of cases. In other words, a paid petitioner to the Supreme Court is more likely to have certiorari granted than someone petitioning the federal courts for relief from an unconstitutional conviction.

So it cannot plausibly be said that federal courts are granting habeas relief freely. The question, then, is what additional message these summary reversals convey.

The answer lies not in doctrine, but in signal. Klein and Clark broke no new ground. AEDPA deference is well-established. The party-presentation principle is older still. Thus, on the surface, both decisions could be chalked up as routine restatements of established law.

But the summary reversals here might be understood as saying much more than that. One could not be blamed for reading these cases and taking away the message that not simply did the 4th Circuit reach the wrong result, but that its effort to engage in any sort of serious review was misguided from the start.

In other words, the summary reversals here may stymie robust engagement. It is unlikely that the Supreme Court will ever come out and explicitly tell lower courts that granting habeas relief is imprudent. But if judges pay attention to the pattern, they will certainly get that message loud and clear. And courts respond to incentives. Thus, for judges who care about reversal (whether they should or not is a different question for another day), the safer course is obvious: find a plausible justification for the state court’s result and deny relief. That is not deference, however; it is learned avoidance.

That message also arrives in a troubling context. The Supreme Court reviews only a small fraction of state criminal cases on direct appeal, and recently, that aspect of its docket has virtually disappeared. As a result, most federal constitutional questions arising in state criminal prosecutions are resolved within state court systems and stay there. Federal habeas is often the only setting in which a federal court examines whether federal constitutional rights are being honored in state criminal proceedings.

And lower federal courts play a vital role here, as they are positioned to see what the Supreme Court cannot. Processing large volumes of petitions from the same state courts, they can identify what no single record that reaches the Supreme Court can reveal. They may observe patterns of state courts misapplying federal constitutional doctrine, for example, and understand that one error in a state court decision, though it may seem like “flyspecking” in isolation, may actually reflect a larger systemic problem. Indeed, the very premise underlying federal habeas review is that while state courts are generally reliable adjudicators of federal constitutional rights, there must still be a mechanism to ensure that those rights are being fully vindicated in state court systems.

Given this, whether the 4th Circuit was correct in the two decisions is not the central point. The point is that the Supreme Court’s response – summary reversal – risks communicating something beyond error correction (especially since the court often claims that its job is not to correct errors but issue wider legal rules). Instead, federal courts may learn that the instinct to look is itself the problem. If the lower courts internalize the lesson that careful engagement with state court rulings is a liability, federal habeas will not merely be more constrained than it already is. It will become performative – present in name, absent in function. A “Great Writ” that exists only on paper is not really a writ, let alone a great one.