THE DEMISE OF HABEAS CORPUS AND THE RISE OF QUALIFIED IMMUNITY:

THE DEMISE OF HABEAS CORPUS AND THE RISE OF QUALIFIED IMMUNITY:

What can possibly be wrong with the elementary concept that if a defendant has been convicted or sentenced by a state court in violation of the United States Constitution, that person should not be executed or imprisoned for a term of the rest of his natural life, or indeed for any term at all?)35

 As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. 37

Although there are many reasons why state courts are unable or unwilling to afford the same dedication to federal constitutional rights as are federal courts, the most obvious is that federal judges have life tenure and salary protection, while many state judges do their job under the threat of an election challenge if they issue or join in unpopular decisions, especially in death penalty cases.54 While state judges who decide criminal appeals face the possibility that they will be labeled “soft on crime,” federal judges are free to decide such issues secure in the knowledge that the unpopularity of their decisions can pose no threat to their job security. Federal judges also have the advantage of more experience enforcing individual constitutional rights, as well as a special obligation to the Constitution.55 Indeed, the protection of the federal Constitution is the fundamental reason we have federal courts: that is simply the most important function federal judges perform.

 In Andrade, the defendant was convicted of two counts of petty theft for stealing approximately $150 in videotapes from two Kmarts.67 Under California’s Three Strikes law, a state court sentenced the defendant to two consecutive terms of 25 years to life, and a state appellate court (in an unpublished opinion) rejected his argument that his sentence violated the Eighth Amendment.6

 Once again, the Court’s concern for protecting government officials in general and state and local law enforcement officers in particular has prevailed over the constitutional rights of individuals. In recent years, the Court has used the qualified immunity doctrine, which shields officials from civil liability as long as their actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known,”128 to severely restrict the ability of individuals to recover for constitutional violations that they suffer at the hands of law enforcement.

The Court has often remarked that “to perform its high function in the best way[,] ‘justice must satisfy the appearance of justice.’ ”165 In a country in which a disproportionate number of individuals who are behind bars or have been treated unlawfully by law enforcement are minorities—indeed, a country in which black juveniles are more than four times as likely as white juveniles to be incarcerated, even though evidence shows that they commit many offenses at similar rates166—satisfying the appearance of justice means ensuring that individuals do not remain in prison in violation of the Constitution or face excessive force at the hands of law enforcement without a proper remedy. On this score, the Court has simply failed in its mission

 After all, a Court that was attentive to the unequal treatment of minorities would fulfill its obligation to enforce the law regarding discrimination, rather than facilely asserting that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”172 Surely, the Court would not abdicate its role with respect to the criminal law on the ground that “the way to stop murder is to stop murdering,” or that “the way to stop crime is to stop committing it.” More basically, a Court that understood the injustices faced by minorities every day in this country would not assume that the time of the postracial society has arrived and that the effects of our deeply rooted history of racial discrimination have been eradicated.173

“that the law is not an abstract concept removed from the society it serves, and that judges, as safeguarders of the Constitution, must constantly strive to narrow the gap between the ideal of equal justice and the reality of social inequality.”175

To be clear, while I disagree with what the Supreme Court has done to federal habeas review and to the doctrine of qualified immunity, the problem is that my colleagues and I are, in fact, bound to follow its rulings—not because these rulings are consistent with the text or purpose of AEDPA, and not because the Court’s approach to qualified immunity is necessary to the welfare of law enforcement officers; rather, we follow the Court’s rulings because the system of law that we so admire and respect contains a hierarchy in which the Supreme Court rests at the top. Nevertheless, I must express my regret that the Court’s jurisprudence in the two areas discussed in this Essay risks turning federal judges from protectors of the Constitution into unreasoning deniers of worthy claims of constitutional rights. It is unfortunate that even reasonable, moderate rulings of federal courts meant to preserve fundamental values against state abuses are now denounced as extreme. The result is an unnecessary and unjust process that values other concerns of far less importance over the constitutional rights of individuals—rights that lie at the heart of our judicial system.

I am an optimist. I still believe that “the arc of the moral universe is long, but it bends toward justice.”178 As we look back on our constitutional history, I see a trend toward progress and social justice, sometimes after painful battles and sometimes after painful lapses or even painful defeats. Yet this is a nation that in most respects continues to improve its democracy, sometimes dragging the Supreme Court with it and sometimes being dragged in that direction by its judiciary. I would hope that some of the recent errors the Court has made will be corrected as the arc of history unfolds and that the Court will in the long run recognize that we are a single nation, with a Constitution dedicated to promoting the general welfare, ensuring the equality of all individuals, and guaranteeing liberty and justice to all—a Constitution that lives and breathes as our great nation evolves in light of the moral, economic, and scientific forces that shape our destiny