The New York Times

Thursday, April 20, 2000

The Court's Picayune Power

By STEPHEN GILLERS

The Supreme Court gave two Virginia death row inmates reprieves on Tuesday. But its opinions invoked neither the grand theme of justice possibly miscarried nor the historical importance of the great writ of habeas corpus, which permits federal judges to review the work of state courts. Instead, victory for the prisoners, a rare event in the current court, turned on the meaning of such everyday words as "unreasonable" and "failed."

This change in the jurisprudence of death denies the court the towering role it once had of ensuring constitutionally fair criminal trials. Instead, the court now engages in the kind of semantic hairsplitting that we associate with scholars of ancient texts. The court is like a giant tethered to a stake: It is able to use its vast powers only in the small orbit allowed by Congress and its own decisions.

In the 1960's and 1970's, federal courts asserted a broad power to hear claims by state prisoners that their trials had violated the Constitution. Some in Congress and in state and federal judiciaries believed that this open-door policy had gone too far, that there was a value in finality and that the constant promise of federal court review undermined that value. The critics had a point: state judges, who also swear to uphold the Constitution, deserved trust. And the great majority of challenges to state convictions had no merit.

So Congress and a more conservative Supreme Court imposed limits on the power of federal judges. They wanted to make the state trial "the main event," as Justice William Rehnquist wrote in 1977.

But even as the habeas corpus powers of federal courts were shackled, a second development raised the stakes -- the return of capital punishment. The Supreme Court had invalidated all state death penalty statutes in 1972, finding that they were applied in an arbitrary manner. Many states then passed laws that they hoped would satisfy the court. In 1976, the court approved three of those statutes, providing a blueprint for a constitutional death penalty law. The death row population began to soar. And many of those inmates, unable to win relief in state courts, turned to federal court just as it was getting increasingly difficult to do so.

So this week the court found itself in an uncomfortable position. Two convicted murderers seemed to have substantial claims that their death sentences had been improperly imposed, yet the court also had to contend with restrictions on its power of review. Doing justice required the court to consult the dictionary more than the Constitution. Even the most conservative justices chafed at the apparent limits on their power.

One case turned on Congress's declaration that a state prisoner cannot ask a federal court for a remedy if he has "failed" to seek the same remedy in state court. This prisoner had failed, but only because the state had withheld information. So did he in fact fail? The court decided unanimously that "failed" carried a requirement of fault and that the prisoner was not at fault.

In the second case, the court had to decide if a state court's interpretation of federal law was "unreasonable." This was necessary because Congress, in its effort to prevent the federal judiciary from second-guessing state judges, had passed a law denying federal review of state convictions unless the state decision was "unreasonable." But what happens if a state judge is wrong? Can he be wrong and reasonable? Four justices said no. Wrong means unreasonable. A five-justice majority said yes, a judge can be wrong and still be reasonable. But the majority also concluded that the state court here was wrong and unreasonable. So, the prisoner gets a new day in court.

Maybe reducing the Supreme Court to this sort of picayune analysis is the inevitable price we pay for our days of freewheeling habeas review. Too much judicial freedom has given way to too little. Eventually, we may learn the lesson that neither extreme serves the goals of justice.

Stephen Gillers is vice dean and professor of legal ethics at New York University Law School.