Habeas Corpus in America: The Politics of Individual Rights (review)

Consider three statements: (1) The Supreme Court’s decision in Smith v. Jones flowed from its complete misunderstanding of the doctrine of res judicata. (2) The Supreme Court’s decision in Smith v. Jones flowed from the desire of Justice A to show his appreciation to Justice B for forgiving a gambling debt by voting for Justice B’s opinion. (3) The Supreme Court’s decision in Smith v. Jones flowed from the interplay of the contending political forces bearing on the Court at the time. Notwithstanding the obvious stereotyping, it would be easy to attribute these assertions, respectively, to legal historians primarily trained in law, history, or political science.

Recognizing the strengths and weaknesses of all three viewpoints, a thoughtful scholar will seek to take each of their perspectives into account to some degree.¹ A serious legal historian, regardless of disciplinary background, would most likely write, “The immediate explanation for the outcome of Smith v. Jones, a case that twisted the doctrine of res judicata into knots for decades, was the desire of Justice A to do a favor to Justice B. Its broader national significance was in providing a principal campaign issue the following year when Candidate X ran for re-election to the White House.”

Wert is a serious legal historian. He is also a political scientist. Hence, his chronological rendition of habeas corpus in America from colonial times to the present highlights the degree to which civil liberties are ultimately delimited by the forces of majoritarian political institutions. “[T]he book’s overarching argument [is] that habeas corpus is a tool of politics and politicians as much as it is a tool of the law and of judges” (xii). The analytical weakness of Wert’s account is that, because it severely discounts granular legal and historical factors, it describes rather than explains case outcomes.

In this narrative, the Supreme Court’s primary concern is with protecting its own institutional authority to issue the writ (133; 196–197). Hence, the Court largely defers to the desires of incumbent “political regimes when they seek to enlarge or decrease the substantive rights that are enforced through habeas” but does “not bow to or work in concert with . . . dominant national coalitions [whose] conceptions of habeas would ultimately . . . divest the Court of habeas power” (19).

This insight is not without importance. An emphasis on the significance of habeas to the Court’s preservation of its independent institutional role rather than to the protection of the individual liberties of the alleged terrorists guided the lawyers who litigated the post-9/11 cases that reached the Court between 2004 and 2008. But Wert’s explanation for the results—“The point at which judicial sympathy with the political regime stopped and judicial institutional independence began occurred when the Court perceived that its institutional power to issue habeas writs was jeopardized” (205)—would apply equally well if each of those cases had come out the opposite way.

Wert’s book thus does little to advance an understanding of when claims for civil liberties, which are by definition short-run judicially enforced checks on the desires of the majority, will or will not prevail. Yet the book is uniquely valuable. Wert has fully mastered the relevant literature, and his account of events, particularly those in the decades surrounding the Civil War, is factually reliable and consistently readable. As an entry into the field for someone interested in a basic up-to-date narrative rather than in more particularized historical explanations or individual legal analyses, this volume is the best on the market.