The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court's Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences

INTRODUCTIONThe collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a series of recent Supreme Court rulings that aim ultimately at eliminating that judicial method of protecting individual rights.1In this age of calls for the near-total abolition of habeas2 and scathing rebukes of judges who fail to toe the not-so-hidden party line, it is easy to lose sight of how we got here. It is convenient to blame it on inevitable historical or jurisprudential trends, or to insist that it followed necessarily from passage of the Antiterrorism and Effective Death Penalty Act (AEDPA).3 One can then proclaim that there is no reasonable alternative to the Supreme Court's present construction of that statute, even though any participant in our habeas regime would have to agree that it resembles a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the Writ as it would be for a Supreme Court Justice to strike out Babe Ruth, Joe DiMaggio, and Mickey Mantle in succession-even with the Chief Justice calling balls and strikes.4Whatever the virtues of the inevitability arguments, accuracy is not one of them. As a judge on the United States Court of Appeals for the Ninth Circuit-a court conservatives love to deride for its attachment to protecting the constitutional rights of persons accused or convicted of crimes5-I have been an involuntary participant in the shaping of modern habeas law, although not in the form that I believe the Constitution demands. In my experience, the true story is not the version that apologists for the drastic reduction of the powers of the Writ put forth. Rather, it is a tale defined by a series of highly questionable Supreme Court rulings that took a new statute, AEDPA-misconceived at its inception and born of misguided political ambition-and repeatedly interpreted it in the most inflexible and unyielding manner possible. Exalting notions of comity and finality above all else, and treating the constitutional rights at stake with the same lack of concern manifest elsewhere in their recent jurisprudence,6 the conservative justices who form the majority on the current Supreme Court-joined more and more frequently, for differing reasons, by their more moderate colleagues7- embarked on a path designed to render constitutional rulings by state courts nearly unreviewable by the federal judiciary.In order to fully comprehend the story of the Supreme Court's postAEDPA habeas jurisprudence, it is necessary to understand that most of our current habeas law is the product of choices, many of them seriously illadvised, made by a deeply conservative Court.8 The upshot will be a more fundamental appreciation of the disagreement between the Supreme Court and the lower courts in the shaping of habeas law, as well as an understanding of the Court's role in turning AEDPA into a body of law that might well disturb even some of its strongest congressional proponents.9 It is also helpful to that understanding to view the Court's habeas cases more broadly, in light of the Court's decisions erecting similar limitations on the enforcement of constitutional rights that have been violated by law enforcement officers or other state or local officials.In the latter case, it is the law of qualified immunity that by the Court's adoption of drastic new restrictions on finding civil liability, and even more so on declaring when police misconduct is unconstitutional, forecloses the development of constitutional law in areas where such development is most needed. …