Closing the Circle: Case v. Nebraska and the Future of Habeas Reform


Government earns legitimacy only to the extent that it prevents the arbitrary deprivation of individual rights. In criminal law, the writ of habeas corpus is a principal vehicle by which federal and state courts provide this protection. The essence of habeas is to ensure a full judicial review of the merits of every constitutional claim raised by a petitioner regarding the legality of her confinement.

This protection is essential in criminal law. Criminal cases are deeply imbued with constitutional implications. Any criminal case in any court implicates the defendant’s rights under the Fifth and Sixth Amendments, and many others raise First, Second, Fourth, and Eighth Amendment concerns as well. The Warren Court decided a host of landmark cases defining national standards on the meaning and application of each of these rights. Many of these landmark cases arose on federal habeas corpus petitions. This era also produced a vitally important opinion about how habeas cases should be decided. Hidden among the Warren Court habeas cases is a brief decision issued in Case v. Nebraska that is remarkable for its clarity, as well as for the joining of forces between Justices Brennan and Clark, who found common ground on a straightforward proposition: the states owe both the people and the federal courts fair procedures by which federal rights may be vindicated in state court. Contained within the decision’s few paragraphs is a blueprint that would guide the development of habeas corpus over the subsequent thirty-five years.

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