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Introduction to Part III Notwithstanding the deep historical roots of the searching review on federal habeas corpus of state criminal convictions, opponents of the practice seek to undermine its legitimacy by portraying it as a recent innovation . To do so, they have seized upon a remarkably unlikely target, Brown v. Allen.1 Crediting a law review article by Professor Paul M. Bator of Harvard, who was introduced in the last chapter, they have sought to suggest that this 1953 case—in which all relief was denied to the state prisoners before the Court, even though each of them had been sentenced to death and presented extremely sympathetic claims on the merits—revolutionized the ability of the federal courts to examine the constitutionality of state criminal convictions.2 That is simply untrue, as this Part will show. Chapter 17 lays out Bator’s claims and the procedural background of Brown. Chapter 18 begins a review of seven collections of Justices’ papers—which include two sets of notes of the critical Court conference. This examination demonstrates that the Justices did not view themselves as making new law concerning the scope of the writ. Indeed, they went out of their way not to do so. All of the Justices (except Jackson, who—egged on by his clerk William Rehnquist— sought without allies to revise existing law and narrow the writ) were working within a consensus that the substantive nature of the inquiry that a federal habeas corpus court should make into the constitutionality of prior state criminal proceedings was simply not on the table. Throughout the Court’s deliberations, the central question was the effect that a denial of certiorari from state court proceedings should have in a subsequent federal habeas corpus action. The ruling was that the requirement of filing a certiorari petition, recently imposed by Darr v. Burford 3 would be retained, but that the federal habeas corpus court should attribute no significance to its denial. A secondary question was the degree to which the District Court hearing the federal habeas petition could rule on it summarily (meaning, as a 16 95 practical matter, deny it)4 simply on the basis of the state court record. Here, the Justices, unable to join a common opinion notwithstanding their lack of any substantive disagreement, wrote cloudy language leaving the decision as to whether to hold an evidentiary hearing to the District Courts’ good judgment. The progress of drafts led to softening and compromise, and, ultimately, the same amorphous standard of discretion whose origins we examined in Part II. The question of whether or not the federal courts should, in Bator’s words, “redetermine the merits of federal constitutional questions decided in state criminal proceedings”5 was not a point of contention. No one doubted that, as had been clear since Frank, or, at the very least since Moore, this was precisely their role.6 To the extent the matter arose, the Justices’ editorial changes were intended to insure that the opinions reaffirmed that role. Only Jackson, whose views (along with those of Rehnquist) are presented in Chapter 19, sought to constrict it. The resulting Court opinions are described in Chapter 20. As Chapter 21 discusses, developments in the period surrounding the decision do not support the thesis that it worked a broadening of the writ. Contemporaries did not believe that a major change had occurred, and the long-running battles over federal habeas corpus continued, in the legislative and judicial arenas, just as they had before. Nor do statistics show that the ruling triggered a landslide of successful petitions; indeed, there is reason to believe that, by reducing the number of evidentiary hearings, its immediate impact was the opposite. In short, as Chapter 22 describes (and as most of today’s Justices recognize )7 Brown fits smoothly into a line of precedent extending back to Frank and Moore. The only legal point that Brown permanently decided—that the denial of certiorari on direct appeal was not preclusive of federal habeas corpus review—was a logical incremental step in the evolution of the writ,8 at most,9 and concerned procedure not substance. Brown did not change the scope of the review a prisoner could obtain, but rather was designed to make sure that, whatever its scope, the review would be meaningful; the Supreme Court did not have the institutional capacity to scrutinize the merits of prisoners’ Constitutional claims on certiorari, so the task was to be performed by the District Courts on habeas...

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