68. "Original" Writs of Habeas Corpus

A new opinion by Justice Sotomayor highlights one of the Court's more obscure powers—and the serious constitutional question that could arise from the justices' unwillingness to ever use it.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us. A special welcome to all of our new subscribers!

Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

Given everything that’s going on, an apology in advance that this week’s issue is a bit longer than usual…

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On the Docket

The Court was busy last week, with a jam-packed regular Order List; the beginning of the February argument session; a denial of emergency relief in the Boy Scouts bankruptcy; and the fourth and fifth decisions in argued cases of the current term.

Starting with the Order List, there were a number of (procedural) rulings of note, which I’ll flag briefly in the order in which they appear:

1. The Court denied a motion by three (red) states to intervene in the mifepristone case (the states claim that they have a better basis for standing than the private plaintiffs) after Judge Kacsmaryk had allowed them to intervene in the district court. I read this as further evidence that the Court is leaning toward a holding that the private plaintiffs lack standing, and nothing more.

2. The Court denied certiorari in the two pending petitions challenging non-unanimous court-martial convictions, about which I’ve written previously (and in one of which I’m co-counsel).

3. The Court denied certiorari in two long-pending challenges to New York City’s rent stabilization laws. Justice Thomas appended a two-page “statement” suggesting that, in an appropriate future case, the Court should resolve whether indefinitely renewable leases that can be terminated only for reasons beyond a landlord’s control qualify as per se takings under the Fifth Amendment.

4. Justice Sotomayor (joined by Justice Jackson) wrote a brief “statement” respecting the Court’s denial of an “original” petition for a writ of habeas corpus in In re Bowe, which I cover in detail below.

5. Justice Alito filed a five-page statement respecting the denial of certiorari in Missouri Dep’t of Corrections v. Finney, arguing that a serious constitutional question arose from a state court’s dismissal, for cause, of jurors with religious objections to homosexuality in an employment discrimination suit brought by a lesbian former state employee who claimed that she was subject to sex discrimination relating to her sexual orientation. (Alito “reluctantly concur[red] in the denial of certiorari” because Missouri had failed to preserve its objection to the dismissal of the jurors below.)

6. Justice Alito, joined by Justice Thomas, dissented from the denial of certiorari in Coalition for TJ v. Fairfax County School Board, in which the lower courts had upheld the admissions criteria at one of the top public magnet high schools in the country¹ against claims of unconstitutional race discrimination. Although Alito’s dissent is quite acerbic, what’s perhaps even more noteworthy is that, compared to the Court’s denial of emergency relief at an earlier juncture in the same case (from which Justice Gorsuch had also publicly dissented), the dissent here was signed only by Alito and Thomas.

The Court also handed down two decisions in argued cases on Wednesday, although, with all respect to the parties and lawyers, they weren’t quite of the same degree of significance:

1. In McElrath v. Georgia, a unanimous Court, in an opinion by Justice Jackson, sided with a Georgia defendant in an unusually technical double jeopardy case—holding that a prior acquittal barred a retrial even though the Georgia Supreme Court had held that the acquittal was legally inconsistent with a conviction on another charge. Justice Alito wrote separately to stress how narrow the Court’s ruling was, which might help to explain why the majority opinion ran only 10 pages.

2. In Great Lakes Insurance SE v. Raiders Retreat Realty Co., the Court, in a unanimous opinion by Justice Kavanaugh, held that “choice-of-law provisions in maritime contracts are presumptively enforceable as a matter of federal maritime law” (without regard to state law), with narrow exceptions that didn’t apply to that case.

The Court also heard two days of oral argument last week, including the unusual argument on the four emergency applications challenging the Biden administration’s “Good Neighbor” ozone pollution plan (about which I wrote in detail last week). There’s quite a lot to say about that argument (including Justice Kavanaugh’s … dubious … assertion that, if both parties simply identify irreparable harms, “that’s a wash”). But I’ll save that for when the ruling comes in, since it sure seems likely that the standard for emergency relief is going to figure prominently in whatever the Court decides.

The Court issued one full Court ruling on an emergency application, even if it wasn’t the one everyone was waiting for. On Thursday, the full Court denied an application to block the Boy Scouts’ $2.46 billion bankruptcy plan on behalf of a group of childhood sex-abuse victims who claimed that the plan unlawfully bars them from suing groups that ran local scouting programs. Justice Alito had previously issued an “administrative” stay of the plan, but no one publicly dissented from Thursday’s order.

But perhaps the biggest news out of the Court last week was the absence of a ruling on former President Trump’s emergency application to keep the January 6 prosecution on hold while he challenges the D.C. Circuit’s rejection of his immunity from the charges in that indictment. I wrote a long-ish thread on the artist formerly known as Twitter on Friday explaining why I think, the longer we don’t hear anything, the worse that is for former President Trump. In a nutshell, the most likely (albeit not only) explanation for why the Court has now taken more than a week is because someone is writing some kind of separate (or majority) opinion, and of the two best outcomes for Trump, one (grant stay/expedite merits) would likely come with no writing; the other (grant stay/wait for merits) would likely come with writing from justices who’d be inclined to write quickly. Of course, this speculation is worth what you paid for it, but that’s where it looks like things stand heading into this week.

Speaking of this week, there are, at the moment, no opinion days on the calendar—which means it’s quite unlikely we get any rulings in argued cases this week (including in the Colorado ballot disqualification case). We expect a regular Order List at 9:30 ET (a list that doesn’t usually include rulings on applications like Trump’s), followed by three days of oral argument. The highlight, at least to me, are the two cases being argued later today—on the constitutionality of Florida and Texas laws that purport to limit content moderation by big social media companies. The Eleventh Circuit (in an opinion by Judge Newsom) struck down Florida’s; a divided panel of the Fifth Circuit (in an opinion by Judge Oldham) upheld Texas’s. I’m with Judge Newsom. More importantly, at least five justices seemed to signal the same when they put Texas’s law back on hold in May 2022. We’ll see if that holds.

Finally, in addition to a possible ruling on former President Trump’s stay application in the January 6 case, the Court has two other emergency applications that will become ripe for a decision later this week—one from Idaho prisoner Thomas Eugene Creech challenging his impending execution; and one from Idaho asking the Court to put back into place most of its state law banning gender-affirming medical care for transgender minors. Not for the first time, and not for the last, what the Court does through its orders, as opposed to its merits opinions, is likely to take precedence.

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The One First “Long Read”: The Supreme Court’s “Original” Habeas Jurisdiction

One of the reasons why I started this newsletter was to help raise the level of public awareness and understanding of the Supreme Court’s more technical (and, in some cases, obscure) authorities. Justice Sotomayor’s brief opinion last Tuesday in In re Bowe is a great excuse to talk about one of my favorite examples: The Supreme Court’s power to issue “original” writs of habeas corpus. Although what follows is a bit … technical, it’s also a quietly important stopgap that the Supreme Court has stopped using.

In a really quick nutshell, writs of habeas corpus are a means of obtaining judicial review of various forms of detention. Although at common law, they were most important as a means of challenging executive detention, they have also provided a powerful means through which criminal convictions and sentences can be collaterally attacked in circumstances in which a defendant’s direct appeal has already run its course (e.g., when new facts come out about the case tending to exculpate the defendant, or when there are changes in the law that render the defendant’s conviction or sentence unlawful; etc.). And since section 14 of the Judiciary Act of 1789, the Supreme Court (and each of its justices) have had the power to issue writs of habeas corpus directly (i.e., not just on appeals from lower-court rulings denying habeas relief).² These writs are known as “original” writs of habeas corpus, because they are filed in the first instance in the Supreme Court—not a lower court. Today, this authority is codified at 28 U.S.C. § 2241(a).

There are two critical limits on this authority. First, although they’re known as “original” writs of habeas corpus, they have to be asking the Supreme Court to exercise its constitutional appellate jurisdiction. That’s because Congress lacks the power to expand the Supreme Court’s constitutional original jurisdiction, which Article III limits to cases in which a state is a party and those affecting ambassadors. Thus, for the Supreme Court to have the power to grant an “original” habeas petition, the petition must be asking the Court, in practice, to review and revise the decision of some lower state or federal court (unless the prisoner is a detained foreign ambassador—a hypothetical I once rudely tested on my Federal Courts exam).

Second, the Supreme Court’s own rules insist that such a writ will be granted only on a showing that “exceptional circumstances warrant the exercise of the Court’s discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court.” Thus, “original” habeas is available if and only if there is no other way for the prisoner to vindicate his claim, including in the Supreme Court. In that respect, the Court’s “original” habeas jurisdiction is something of a safety valve—a remedy of last resort for cases in which other remedies, whether in the lower courts, the Supreme Court, or both, have proven unavailable.

For much of the twentieth century, with lower federal courts having broad jurisdiction to issue habeas relief in appropriate cases, and with the Supreme Court able to review those courts’ decisions via certiorari, original habeas faded into the background. Although the Court throughout the nineteenth century had regularly issued original writs of habeas corpus in cases in which it otherwise lacked appellate jurisdiction, the last time it issued one was in 1925—not coincidentally, the same year as the “Judges’ Bill” (the Judiciary Act of 1925), which modernized the Court’s appellate jurisdiction.

But “original” habeas started to become important again when Congress, starting in 1996, began to restrict the scope of habeas in an array of immigration and post-conviction (and, after September 11, military detention) cases. Most significantly, the Antiterrorism and Effective Death Penalty Act (AEDPA) categorically bars “second-or-successive” habeas petitions except in a small handful of circumstances—including in at least some contexts in which prisoners have indisputably meritorious claims. AEPDA also takes away the Supreme Court’s jurisdiction to review, through certiorari, lower-court rulings refusing to allow prisoners to even bring a wide array of post-conviction claims.

In its 1996 ruling in Felker v. Turpin, the Court upheld AEDPA’s elimination of its appellate jurisdiction in those prisoner cases—at least largely because AEDPA had not taken away the Court’s backup authority to issue “original” writs of habeas corpus in meritorious cases in which no appeal via certiorari was available. (Those who know the Court’s history will recognize the overlap between the Court’s move in Felker and the similar maneuver by Chief Justice Chase to duck a huge constitutional question in Ex parte McCardle.)

Because it didn’t touch the Supreme Court’s “original” habeas jurisdiction, AEDPA thus did not raise the question of whether Congress could keep an entire class of cases away from the Supreme Court. But in a concurring opinion, Justice Souter warned that this backup authority had to be meaningfully available in practice, and not just in theory, for the Court’s avoidance of the constitutional question to work. As he wrote, “if it should later turn out that [these other] avenues . . . were closed, the question whether the statute exceeded Congress’s Exceptions Clause power would be open.”

Enter, Justice Sotomayor. Writing 28 years after Felker, Sotomayor’s separate opinion in In re Bowe (joined by Justice Jackson) highlights both the underlying problems AEDPA creates and the Court’s unwillingness to solve it. The issue in Bowe is a provision of AEDPA that directs federal courts to dismiss a “claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application” (emphasis mine). Section 2254, in turn, is the statute through which federal courts can hear habeas petitions challenging state convictions. Thus, the plain text of this provision (28 U.S.C. § 2244(b)(1)) limits second-or-successive federal habeas petitions by state prisoners to “new” claims (which the rest of the statute further circumscribes).

But six circuits (out of the nine to have reached the issue) have held that the same requirement applies to second-or-successive claims under section 2255, which is the statute through which federal prisoners, like Bowe, can collaterally attack their federal convictions. (I guess we’re not “all textualists now.”) In other words, there is a 6-3 circuit split on whether federal courts can ever hear claims in second-or-successive petitions by federal prisoners that were presented in an earlier application—where the plain text of the statute sure seems to cut against the majority view.

But regardless of which side is correct, what can’t be denied is that the Supreme Court would usually grant certiorari in an appropriate case to resolve such a circuit split, as Justice Kavanaugh has urged it to do. The problem is that, in the six circuits that therefore automatically dismiss claims brought in prior 2255 actions by federal prisoners, there is no certiorari jurisdiction to challenge such a dismissal. And in the three circuits that don’t automatically dismiss such claims, the federal government (which agrees with those three circuits) won’t—and, in any event, can’t—appeal an order allowing such a claim to proceed.

In other words, even though justices from across the ideological spectrum agree that the Court ought to resolve this split, there’s no way to do so via certiorari. An “original” writ of habeas corpus seems to be the only way through which this split could ever be resolved.³ And in Bowe, where it was not clear to Justice Sotomayor that Bowe would prevail on the claim that the Eleventh Circuit held the lower courts couldn’t even consider, the high threshold for such a writ wasn’t satisfied.

Lest this seem like a fluky situation, this is not the first time the Court has faced this exact procedural trap. The exact same thing happened in 2016, in the aftermath of the Court’s decision in Johnson v. United States (which struck down the “residual clause” of the Armed Career Criminals Act), when federal appeals courts disagreed over whether and when Johnson could be enforced by federal prisoners in a second-or-successive habeas petition (everyone agreed it could be enforced in a first petition). The Court was urged, then, to resolve the issue through an original habeas petition, all the more so because, under AEDPA’s statute of limitations, Johnson claims had to be brought within one year of Johnson. Instead, the justices found a bizarre (and highly fortuitous) vehicle—and held, inside the one-year window, that Johnson was indeed enforceable through second-or-successive applications.

I wrote then that it was high time for the Court to use its original habeas jurisdiction rather than twist itself into a pretzel to not use it; Bowe is yet another example. And there will be others, especially in cases involving federal prisoners (who, unlike state prisoners, have no access to state courts for their claims), so long as AEDPA continues to so dramatically restrict judicial review of even meritorious claims filed in a second-or-successive petition.

Given that the Court keeps declining to grant original writs of habeas corpus even in cases in which there are strong arguments for them, it seems like the justices will soon need to confront the grave constitutional question that Justice Souter warned would arise if they never actually use their authority to grant original writs of habeas corpus as a way around AEDPA’s limits on their direct review. And although this is the same Court that held last year that the Suspension Clause does not require judicial review of at least some meritorious second-or-successive claims by federal prisoners, the constitutional question here is not about the rights of individual prisoners; it is about the limits on Congress’s power to take away the Supreme Court’s appellate jurisdiction. If AEDPA is constitutional even in a world in which the Supreme Court will never use the one font of appellate jurisdiction that the statute leaves untouched, that’s a pretty powerful precedent that future Congresses could seek to exploit in imposing comparable constraints on the justices’ power.

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SCOTUS Trivia: The Last Original Writ

As noted above, the Supreme Court has not issued an “original” writ of habeas corpus since 1925. That writ came in a case, Ex parte Grossman, with interesting ramifications for today.

To make a long story short, Phillip Grossman was convicted of contempt of court for violating an injunction the federal government had obtained against him for running a speakeasy during Prohibition in violation of the Volstead Act. Grossman was initially sentenced to one year in prison and a $1,000 fine, but President Calvin Coolidge subsequently commuted his sentence to just the fine. A district court nevertheless ordered Grossman returned to custody after concluding that presidential pardons did not extend to the offense of contempt of court. Because Grossman could not formally appeal that ruling, he sought original habeas relief from the Supreme Court.

Chief Justice Taft (right) with President Coolidge (left), whose commutation of a Prohibition-related sentence helped to provoke the dispute in Ex parte Grossman

In a unanimous opinion by Chief Justice (and former President) William Howard Taft, the Court sided with Grossman. Although the power to pardon contempts might seem to give the President authority to frustrate the courts, Taft was at pains to explain why it was consistent with constitutional text, the separation of powers and historical practice for the Chief Executive to have exactly such a power—even if he was inclined to abuse it. As Taft concluded,

If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment, rather than to a narrow and strained construction of the general powers of the President.

An interesting blast from the past…

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1. As an alumnus of one of TJ’s closest rivals, this is a hard thing to publicly admit.

2. At common law, the writ issued to commence the proceeding—by commanding the jailer to produce the prisoner before the issuing judge, who could then inquire into the factual and legal basis for the prisoner’s detention. But a series of rule changes culminating in the 1940s mean that, today, the writ usually issues only at the end of the proceeding—to procure the prisoner’s release. This distinction actually mattered in a handful of Guantánamo cases, but doesn’t make much difference here.

3. Justice Sotomayor’s Bowe opinion also mentions the possibility that the Court might accept a certified question from a court of appeals to resolve the split. But the Court hasn’t answered one of those since 1981—and, unlike an original habeas petition, could only use that obscure process if a court of appeals asks. Given that nine circuits now have case law on the matter, such a request would almost certainly have to come from one of the three that hear post-conviction claims from federal prisoners but haven’t yet resolved this issue.