5 Period III. Direct Review and Habeas Review Enforcing Fourteenth Amendment Rights 5 Period III. Direct Review and Habeas Review Enforcing Fourteenth Amendment Rights

5.1 Part A. The Supreme Court Tilts the Federalism Balance Toward Federal Interests, 1931-70 5.1 Part A. The Supreme Court Tilts the Federalism Balance Toward Federal Interests, 1931-70

5.1.1 Justices of the Supreme Court of the United States 5.1.1 Justices of the Supreme Court of the United States

Justices of the Supreme Court of the United States

5.1.2 Chapter 11. The Supreme Court Expands Fourteenth Amendment Procedural Due Process and the Habeas Remedy 5.1.2 Chapter 11. The Supreme Court Expands Fourteenth Amendment Procedural Due Process and the Habeas Remedy

5.1.2.1 Introductory Note 5.1.2.1 Introductory Note

In Chapter 3, we saw that in the early 20th century, Fourteenth Amendment due process rights meant substantive due process rights, principally asserted by corporations like railroads. Procedural due process rights meant pretty much what state courts were willing to afford.

In the 1930s, things began to change when the Supreme Court encountered a number of cases where state supreme courts had tolerated criminal cases of egregious procedural irregularity. As a result, the Court expanded Fourteenth Amendment procedural due process rights.

However, by then, the capacity of the Court to enforce these newly-expanded rights had diminished, due to the crush of cases seeking the Court’s now-discretionary direct review. What to do? In 1953, the Court grappled with whether to reinterpret the 1867 Act (its text unchanged) to allow the habeas remedy administered by the lower federal courts to take on a review function akin to direct review.

5.1.2.2 A. The Court Expands Fourteenth Amendment Procedural Due Process 5.1.2.2 A. The Court Expands Fourteenth Amendment Procedural Due Process

Twining v. New Jersey (1908)

Powell v. Alabama (1932)

Brown v. State (Miss. 1935)

Procedural Default Doctrine on Direct Review

Brown v. Mississippi (1936)

Palko v. Connecticut (1937)

5.1.2.3 B. The Court’s Lack of Direct Review Capacity to Enforce these Rights 5.1.2.3 B. The Court’s Lack of Direct Review Capacity to Enforce these Rights

Darr v. Buford (1950)

If the Court Had Denied Review in Brown, Would Review on Habeas Have Been Available?

5.1.2.4 C. The Court Expands the Habeas Remedy to Take on a Review Function Akin to Direct Review 5.1.2.4 C. The Court Expands the Habeas Remedy to Take on a Review Function Akin to Direct Review

Brown v. Allen (1953)

Proceedings in State Court

The District Court Opinion

The Supreme Court Opinions

Was There a Middle Ground Available, i.e. Should the Habeas Standard of Review Depend on the Nature of the Fourteenth Amendment Violation?

5.1.2.5 D. Should Procedural Default Doctrine on Habeas Review be Similar to Procedural Default Doctrine on Direct Review? 5.1.2.5 D. Should Procedural Default Doctrine on Habeas Review be Similar to Procedural Default Doctrine on Direct Review?

Daniels v. Allen (1953)

Fay v. Noia (1963)

Return Toward Daniels

5.1.2.6 E. The Court Expands the Grounds of Habeas Review by Incorporating the Sixth Amendment Right to Counsel into Fourteenth Amendment Due Process 5.1.2.6 E. The Court Expands the Grounds of Habeas Review by Incorporating the Sixth Amendment Right to Counsel into Fourteenth Amendment Due Process

Gideon v. Wainwright (1963)

5.1.3 Chapter 12. The Supreme Court Incorporates the Fourth Amendment Exclusionary Remedy into Fourteenth Amendment Due Process 5.1.3 Chapter 12. The Supreme Court Incorporates the Fourth Amendment Exclusionary Remedy into Fourteenth Amendment Due Process

5.1.3.1 Introductory Note 5.1.3.1 Introductory Note

In Chapter 7, we saw that Justice Frankfurter favored incorporation of the Fourth Amendment right into Fourteenth Amendment due process, but resisted a federal damages remedy for its violation.

In this chapter, we will see that Justice Frankfurter also resisted a federal exclusionary remedy for a violation of a Fourth/Fourteenth Amendment right.

Frankfurter’s rejection of federal damages and exclusionary remedies reflected his vision of federalism balancing, but it was a dissenting position by the end of this historical period.

5.1.3.2 A. Justice Frankfurter Rejects Incorporation of the Exclusionary Remedy 5.1.3.2 A. Justice Frankfurter Rejects Incorporation of the Exclusionary Remedy

Wolf v. Colorado (1949)

5.1.3.3 B. Justice Jackson Rejects Partial Incorporation 5.1.3.3 B. Justice Jackson Rejects Partial Incorporation

Irvine v. California (1954)

5.1.3.4 C. The Court Rejects the Frankfurter and Jackson Positions 5.1.3.4 C. The Court Rejects the Frankfurter and Jackson Positions

Mapp v. Ohio (1961)

5.1.3.5 D. Some Questions 5.1.3.5 D. Some Questions

Some Questions

Should the Court Have Accepted Partial Incorporation?

Why Was Justice Frankfurter Willing to Establish the Federal Due Process Right But Not the Federal Exclusionary or Damages Remedy?

How Likely Is It that Justice Frankfurter Would Have Taken the Position He Did in Brown v. Allen if He Had Foreseen Mapp?

5.2 Part B. The Supreme Court Tilts the Federalism Balance Toward State Interests, 1971-2021 5.2 Part B. The Supreme Court Tilts the Federalism Balance Toward State Interests, 1971-2021

5.2.1 The Nixon Court 5.2.1 The Nixon Court

The Nixon Court

5.2.2 Chapter 13. The Supreme Court Moves the Law in the Direction of Justice Frankfurter’s Federalism Balancing in Wolf v. Colorado (1949) by Limiting Mapp v. Ohio (1961) on Three Fronts 5.2.2 Chapter 13. The Supreme Court Moves the Law in the Direction of Justice Frankfurter’s Federalism Balancing in Wolf v. Colorado (1949) by Limiting Mapp v. Ohio (1961) on Three Fronts

5.2.2.1 Introductory Note 5.2.2.1 Introductory Note

Justice Frankfurter’s decision in Wolf v. Colorado (1949) and his dissent in Monroe v. Pape (1961) found fertile ground in the Nixon Court. When Chief Justice Warren retired in 1969, then-Judge Warren Burger campaigned for his post by attacking Mapp, finding in President Nixon a receptive ear. Nixon appointed not only Burger but three other Justices he hoped would pursue his war-on-crime agenda.

The newly appointed Nixon Court had three options for pushing back on Mapp.

It could limit Mapp directly, returning the law in the direction of Wolf.

It could decline to recognize the underlying Fourth/Fourteenth Amendment right, following Justice Frankfurter’s admonition in Monroe that “our federal system . . . presupposes a wide range of regional autonomy in the kinds of protection local residents receive.”

It could refuse to enforce Mapp on habeas review.

As it turned out, the Nixon Court did all three.

5.2.2.2 A. The Court Limits Mapp by Altering its Direct Review Priorities and Procedures in Order to Review and Reverse State Court Decisions Providing Arguably Excessive Fourth/Fourteenth Amendment Protection 5.2.2.2 A. The Court Limits Mapp by Altering its Direct Review Priorities and Procedures in Order to Review and Reverse State Court Decisions Providing Arguably Excessive Fourth/Fourteenth Amendment Protection

Priorities

South Dakota v. Opperman (1976)

Michigan v. Long (1983)

Procedures: Per Curiam Summary Reversals of State Court Decisions

Florida v. Myers (1984)

5.2.2.3 B. The Court Refuses to Enforce Mapp on Habeas Review 5.2.2.3 B. The Court Refuses to Enforce Mapp on Habeas Review

Stone v. Powell (1976)

Facts as Stated by Justice Powell

Was It Necessary for the Court to Reach the Habeas Issue?

Justice Powell’s Federalism Balancing

Justice Brennan’s Federalism Balancing

Justice White’s Federalism Balancing

5.2.2.4 C. The Court Limits Mapp Directly 5.2.2.4 C. The Court Limits Mapp Directly

Stone v. Powell (1976) (White, J.)

Rakas v. Illinois (1978) (White, J.)

United States v. Leon (1984)

Herring v. United States (2009)

Justice Thomas’ Marker (2018)

5.2.3 Chapter 14. The Supreme Court Further Limits Habeas Review 5.2.3 Chapter 14. The Supreme Court Further Limits Habeas Review

5.2.3.1 Introductory Note 5.2.3.1 Introductory Note

In the last chapter, we saw that Stone v. Powell (1976) carved out an exception to full habeas review for Fourth/Fourteenth Amendment claims.

Thereafter, the Court made no further exceptions to Brown v. Allen (1953), although in 1993 it came close, deciding (5-4) that Miranda claims merited full habeas review.

The 1996 quadrennial presidential election crime bill contained ambiguous language potentially altering full habeas review, inviting the Court to decide its future. In 2000, the Court accepted the invitation. Would Justice Kennedy join the four dissenters in the 1993 Miranda decision to overrule the Brown v. Allen standard of review as to all federal claims, returning habeas review to a pre-Brown highly deferential standard?

5.2.3.2 A. The Court Refuses (5-4) to Carve Out an Additional Categorical Exception to Brown v. Allen (1953) 5.2.3.2 A. The Court Refuses (5-4) to Carve Out an Additional Categorical Exception to Brown v. Allen (1953)

Withrow v. Williams (1993)

5.2.3.3 B. The Court (5-4) Interprets Ambiguous Language in the 1996 Act to Overrule Brown v. Allen (1953) 5.2.3.3 B. The Court (5-4) Interprets Ambiguous Language in the 1996 Act to Overrule Brown v. Allen (1953)

The Text of the 1996 Amendment to the Habeas Statute

Williams v. Taylor (2000)

5.2.3.4 C. The Court Severely Limits Habeas Review 5.2.3.4 C. The Court Severely Limits Habeas Review

Harrington v. Richter (2011)

5.2.3.5 D. The Court Enforces its Limits by Per Curiam Summary Reversals of Courts of Appeals, 2011– 5.2.3.5 D. The Court Enforces its Limits by Per Curiam Summary Reversals of Courts of Appeals, 2011–

The Court Enforces its Limits by Per Curiam Summary Reversals of Courts of Appeals, 2011–

5.2.3.6 E. Message Received 5.2.3.6 E. Message Received

Message Received

5.2.3.7 F. Justice Thomas' Marker 5.2.3.7 F. Justice Thomas' Marker

Justice Thomas' Marker

5.2.4 Chapter 15. Direct Review and State Constitutional Rights 5.2.4 Chapter 15. Direct Review and State Constitutional Rights

5.2.4.1 Introductory Note 5.2.4.1 Introductory Note

In Chapter 13, we saw that the Supreme Court altered its direct review priorities and procedures in order to review and reverse state court decisions that, in its view, granted excessive federal constitutional protection.

In this chapter, we will see that the Court also altered an important direct review doctrine in order to serve the same end.

5.2.4.2 A. The Supreme Court Alters Direct Review Doctrine in Order to Put State Court Judges to a Choice 5.2.4.2 A. The Supreme Court Alters Direct Review Doctrine in Order to Put State Court Judges to a Choice