Document Type

Article

Publication Title

Alabama Law Review

Publication Date

2000

Abstract

This article responds to the views of Paul M. Bator of Harvard and the Justices who have accepted his theory that Brown v. Allen, 344 U.S. 443 (1953) - which resulted in the denial of habeas corpus in a series of cases displaying all the worst features of Southern justice - represented a revolutionary broadening of the writ, and should be rejected as a modern usurpation of the states' authority.

I explore the question through a detailed examination of the seven surviving sets of papers of the Justices who sat on the case. This review - which includes two sets of notes of the critical Court conference - demonstrates that the Justices did not view themselves as making important new law concerning the scope of the writ. On the contrary, with the exception of Justice Jackson - who, egged on by his law clerk William Rehnquist (whose memos I quote at length), wished to make significant cutbacks - they went out of their way to re-affirm the law as it had existed since Frank and Moore. Indeed, the passage of the opinion over which Justices O'Connor and Thomas disagree, see Williams v. Taylor, 120 S.Ct. 1495, 1522-23 (2000), was written for precisely this purpose.

Moreover, statistics show that the ruling did not lead to an upsurge in successful petitions; indeed, it may have had the opposite effect. And, despite numerous contemporary legislative and judicial battles over habeas corpus, no one considered the case of major import until the appearance of Bator's article ten years later.

I conclude that in attacking Brown as the source of the evils they decry, Justices Rehnquist, Scalia and Thomas are attacking a ghost, when what really confronts them is a solid legal cathedral built over many generations by workers who were often at odds on points of decoration but had a common understanding of the contours of the whole edifice.

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