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Rehnquist and Federal Habeas Corpus

THE REHNQUIST LEGACY, Craig Bradley, ed., Cambridge University Press, 2006

IU Law-Bloomington Research Paper No. 27

30 Pages Posted: 10 Oct 2005 Last revised: 26 Jun 2013

Joseph L. Hoffmann

Indiana University-Bloomington, Maurer School of Law


One of the key battlefields on which the modern war of federalism has been fought is federal habeas corpus. In the 1960's, led by Justice William J. Brennan, the Supreme Court expanded the availability of federal habeas for convicted state criminal defendants who claimed that their federal constitutional rights had been violated. This expansion was based on Brennan's fundamental distrust of state courts to vindicate federal rights. The practical impact of the expansion was felt most strongly in the special realm of capital cases, where extensive federal habeas review made it difficult for the states to implement the ultimate punishment. As soon as Justice William Rehnquist joined the Court in 1972, he set out to reverse the Brennan-led expansion of federal habeas. Over the course of his career, Rehnquist managed to roll back that expansion in almost every respect. Beginning with Wainwright v. Sykes (1977), which overturned the core of Brennan's famous habeas opinion in Fay v. Noia (1963), Rehnquist gradually succeeded in persuading the Court to adopt a narrower view of the role of the federal courts - one that was more deferential to the state courts, and more protective of the public's interest in punishing criminals. The Rehnquistian vision of limited federal habeas corpus ultimately prevailed on such issues as habeas jurisdiction, the right to counsel, procedural default, the role of actual innocence, harmless error, retroactivity, and the proper standard of review in habeas. The only area where Rehnquist failed to implement his vision of federal habeas was the scope of habeas review, and by the end, this lone failure may not even have mattered very much. Today, the law of federal habeas has returned to the way it was before the 1960's, and the ongoing fight over the death penalty has largely shifted from the federal habeas courts to the broader political and social worlds.

Keywords: Rehnquist, federal habeas corpus, death penalty, supreme court

Suggested Citation

Hoffmann, Joseph L., Rehnquist and Federal Habeas Corpus. THE REHNQUIST LEGACY, Craig Bradley, ed., Cambridge University Press, 2006; IU Law-Bloomington Research Paper No. 27. Available at SSRN:

Joseph Hoffmann (Contact Author)

Indiana University-Bloomington, Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

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