Whither (or Wither) Habeas Corpus?: Observations on the Supreme Court's 1985 Term
Abstract
The writ of habeas corpus has been called many things, such as ‘a broom to clean the judicial house,’ ‘the most celebrated writ in the English law,’ the ‘only sufficient defence of personal freedom,’ ‘the most important human right in the Constitution,’ ‘an attribute of our way of life,’ and, of course, ‘the Great Writ’ (with the inevitable initial capital letters). In the Eleventh Circuit, just for a few recent examples, Judge Fay has called habeas corpus ‘troublesome,’ Judge Gonzalez has called it ‘untidy,’ the late Judge Hooper questioned whether habeas corpus is a ‘bane or a blessing,’ and Judge Hill has termed the Great Writ the ‘Great(ly Abused) Writ.’ Whatever it is, it is immediately clear that habeas corpus-especially federal habeas corpus relief for state prisoners-is controversial. In this Article, I shall elaborate on some of this controversy: first, by noting a few significant statistics; second, by discussing the key Supreme Court habeas cases of the 1985 Term; and finally, by presenting issues that will almost certainly be included in the next generation of habeas corpus analysis.