Habeas Corpus Article 137 Harv. L. Rev. 2222

The New Negative Habeas Equity


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Introduction

Habeas corpus is a grand instrument of English common law,1 although many describe it colloquially as an equitable power.2 For its part, the Supreme Court has long asserted equity-like discretion to limit habeas relief. I refer to that familiar practice as “negative habeas equity.”3 On the traditional theory of negative equity, the Court has discretion to formulate non-statutory restrictions on the habeas remedy, which apply across the federal judiciary. This view of negative equity animates, among other things, a harmless-error standard, the procedural default doctrine, and rules against the retroactive application of new Supreme Court decisions.4 These judge-made rules have survived many legislative revisions, so one might at least argue that Congress has implicitly ratified them.5

Over the last several terms, however, the Supreme Court has advanced a much more ambitious theory of negative habeas equity — one that is far beyond the scope of any implicit ratification. Brown v. Davenport6 and Shinn v. Ramirez7 are two recently decided cases that, in different measures, embraced the newer theory.8 That version asserts more than Supreme Court power to formulate judge-made limits on the habeas remedy — it also asserts discretionary authority for lower courts to reject relief to which claimants are otherwise entitled. As Ramirez puts it: “[E]ven if a prisoner overcomes all [the limits imposed by statute and announced by the Supreme Court], he is never entitled to habeas relief. He must still ‘persuade a federal habeas court that law and justice require [it].’”9

As phrased by Justice Gorsuch, its primary expositor, this “new negative habeas equity” has roots in two statutory provisions. First, the primary power-granting provision, 28 U.S.C. § 2241, provides that federal courts “may” grant habeas writs.10 But § 2241 phrases that power permissively because it’s contingent on other conditions set forth in the statute — not because judges retain free-floating discretion to deny relief. Second, § 2243 requires that a federal court “dispose of the [habeas] matter as law and justice require” after it has found predicate facts.11 But § 2243’s law-and-justice language anchors judicial power to craft efficacious remedies, not to withhold relief.

These interpretive mistakes are of surpassing doctrinal importance, and they would work a habeas revolution. Consider an example involving Atkins v. Virginia,12 which barred death sentences for intellectually disabled people. If a death-sentenced person proved that they were intellectually disabled, and if they are otherwise entitled to habeas relief, then could a federal judge really withhold a remedy for “equitable” reasons? On what legal authority? What would those “equitable” reasons be? Because the crime was heinous, the defendant was unrepentant, or the surviving victims would be especially aggrieved? Atkins, moreover, is but one constitutional site of profound vulnerability. Freewheeling habeas remediation would chew at the least popular constitutional rights: the Sixth Amendment right to counsel,13 due process rights against prosecutorial misconduct,14 and the right to suppress tainted confessions,15 to name just a few.

I use this Article to urge skepticism about the new negative habeas equity, which relies on a superficial literalism that is impossible to square with statutory context, structure, and history. In Part I, I set forth the older version of negative equity and then describe the recent departure therefrom, evident in Davenport and Ramirez. In Part II, I explain why the new negative equity doesn’t follow from any text-centered approach to statutory interpretation16 — relying substantially on context and drawing heavily from a statutory history that Davenport, Martinez, and academic discourse have neglected.17 In Part III, I focus on the most troubling register of the new negative habeas equity, which involves a rule against habeas relief for those who are not “factually innocent.”

Although the new negative equity is normatively aligned with restrictive habeas innovations more credibly tethered to authoritative law, it attempts to squeeze water from a statutory stone. This Article presents a statutory history, centered on the 1874 Revised Statutes18 (1874 Revisions) and the 1948 Judicial Code,19 that remains as-yet unlinked to the new negative equity. A history of the enacted changes to text over time can be deeply moving to those who embrace ordinary-public-meaning textualism, like Justice Gorsuch himself.20 I also make several arguments rooted in traditional doctrine, but the timing and stakes make it doctrinalism of unique urgency. The vision of negative habeas equity appearing in Davenport and Ramirez is dicta,21 so there remains an opportunity for the Supreme Court to course correct.

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* Bryant Smith Chair in Law and Co-Director, Capital Punishment Center, University of Texas School of Law. For their comments on various drafts, I thank Payvand Ahdout, John Blume, Thomas Frampton, Eric Freedman, Tara Grove, Aziz Huq, David Kinnaird, Leah Litman, Eve Primus, Micah Quigley, Richard Re, Tivon Schardl, Fred Smith, Jordan Steiker, and Keir Weyble.

Footnotes
  1. ^ King’s Bench and inferior common law courts had English authority to issue habeas corpus ad subjiciendum, which is the “Great Writ.” See Paul D. Halliday, Habeas Corpus: From England to Empire 4 (2010). Professor Paul Halliday’s book is the defining work of English habeas history, see, e.g., Stephen I. Vladeck, The New Habeas Revisionism, 124 Harv. L. Rev. 941, 947 (2011) (book review) (describing Halliday’s archival work as “by far the most comprehensive”), and I reference it often throughout this Article. Halliday developed his history based on review of writs issued from King’s Bench every fourth year between 1500 and 1800, and from comprehensive review of all writs issued “for periods known to contain important developments.” Halliday, supra, at 5; see also id. at 319–33 (describing the study’s methodology).

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  2. ^ See Samuel L. Bray, The Supreme Court and the New Equity, 68 Vand. L. Rev. 997, 1046 & n.285 (2015). Professor Bray’s work belongs to a wave of new scholarship on equitable power, although that material is largely beyond the scope of this Article. See also, e.g., Aditya Bamzai & Samuel L. Bray, Debs and the Federal Equity Jurisdiction, 98 Notre Dame L. Rev. 699, 702–03 (2022) (discussing when the federal government may invoke equity as authority for it to sue); Owen W. Gallogly, Equity’s Constitutional Source, 132 Yale L.J. 1213, 1221 (2023) (siting the constitutional authority for equitable remedies in the judicial power).

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  3. ^ Positive equity would be the exercise of discretionary power to award more complete relief upon a finding of unlawful custody. For example, the Tenth Circuit has a line of cases invoking the idea as a source of power to bar retrials of successful habeas claimants. See, e.g., Capps v. Sullivan, 13 F.3d 350, 352 (10th Cir. 1993) (citing 28 U.S.C. § 2243) (interpreting law-and-justice language to empower federal court to bar retrial); see also Graham v. White, 678 F. Supp. 3d 1332, 1359–60 (N.D. Okla. 2023) (largely same).

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  4. ^ See, e.g., Withrow v. Williams, 507 U.S. 680, 717 (1993) (Scalia, J., concurring in part and dissenting in part) (harmless error); Dretke v. Haley, 541 U.S. 386, 392 (2004) (procedural default); Danforth v. Minnesota, 552 U.S. 264, 278 (2008) (retroactivity).

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  5. ^ See infra notes 76–83 and accompanying text (discussing concept of congressional acquiescence).

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  6. ^ 142 S. Ct. 1510 (2022).

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  7. ^ 142 S. Ct. 1718 (2022).

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  8. ^ Davenport, 142 S. Ct. at 1524; Ramirez, 142 S. Ct. at 1731.

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  9. ^ Ramirez, 142 S. Ct. at 1731 (alteration in original) (quoting Davenport, 142 S. Ct. at 1524).

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  10. ^ 28 U.S.C. § 2241.

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  11. ^ Id. § 2243.

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  12. ^ 536 U.S. 304 (2002).

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  13. ^ See, e.g., Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance of trial counsel).

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  14. ^ See, e.g., Brady v. Maryland, 373 U.S. 83 (1963) (suppression of material evidence).

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  15. ^ See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966) (suppression of inculpatory statements given without sufficient waiver).

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  16. ^ My argument doesn’t proceed from any exotic textualism; I simply reject literalism that is blind to what people sometimes call semantic context. See Tara Leigh Grove, The Supreme Court, 2019 Term — Comment: Which Textualism?, 134 Harv. L. Rev. 265, 269 (2020) (“Formalistic textualism emphasizes semantic context, rather than social or policy context, and downplays the practical consequences of a decision.”); John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 92–96 (2006) (distinguishing semantic from policy context); see also Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter Of Interpretation 24 (Amy Gutmann ed., 2d ed. 2017) (“[T]he good textualist is not a literalist . . . .”). My argument from text should also appeal to purposivists for whom statutory language is the best evidence of legislative purpose. See Manning, supra, at 78 (describing this category of purposivists).

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  17. ^ The Supreme Court’s negative equity revision remains unexplored in academic work. One exception is a manuscript by Michael McCue, entitled Discretion to Deny (on file with the Harvard Law School Library).

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  18. ^ See Revised Statutes of 1874, 18 Stat. 1 (1873) (1874 Revisions). The formal enactment publishing these statutes was the Act of June 20, 1874, ch. 333, 18 Stat. 113.

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  19. ^ See Act of June 25, 1948, ch. 646, 62 Stat. 869 (revising and codifying Title 28 of the U.S Code).

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  20. ^ See generally Anita S. Krishnakumar, Statutory History, 108 Va. L. Rev. 263, 270 (2022) (discussing the use of statutory history in new textualist method). Justice Scalia, for example, has embraced statutory history as a legitimate tool of new textualism. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 256 (2012) (“[This type of statutory history] form[s] part of the context of the statute, and (unlike legislative history) can properly be presumed to have been before all members of the legislature when they voted.”). So has Justice Gorsuch. See, e.g., BNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting) (defining valuable statutory history as “the record of enacted changes Congress made to the relevant statutory text over time”). In fact, Professor Krishnakumar has collected data showing that Justice Gorsuch is “by far the most frequent user of statutory history.” Krishnakumar, supra, at 289.

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  21. ^ See infra section II.C, pp. 2250–57.

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