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Blogosphere Reactions to Harrington v. Richter

2011 January 20
by Alex Coolman

There is a bit of blogospheric discussion of yesterday’s unanimous SCOTUS reversal in Harrington v. Richter, and the general tone of things is that Harrington could make things more challenging for federal habeas petitioners.

The prosecution-oriented blog Crime and Consequences says that Justice Kennedy, the author of the opinion, hit the proverbial ball “out of the park” by stressing the difficulty of the AEDPA requirement to show that the state court’s analysis was  “contrary to or an unreasonable application of” federal law.

Writing at the Volokh Conspiracy, John Elwood calls the language of Harrington an “unusually strong” slapdown of the Ninth Circuit.

Meanwhile, at SCOTUSBlog, (the same?) John Elwood asserts that Harrington contains “unusually harsh criticism of the Ninth Circuit’s opinion, saying that its decision was ‘clear error’ reflecting ‘judicial disregard for the sound and established principles that inform’ the issuance of the writ of habeas corpus.”

Habeas Corpus Blog states that, in Harrington, Justice Kennedy “seems to elucidate, for the first time, the proper steps a habeas court should take in assessing whether the state court’s decision was unreasonable.  This could be pretty influential.”

I’m going to go out on a limb and say that I don’t think the language of  Harrington regarding the need to defer to state court judgments actually makes that much of a difference.  The principles articulated by Justice Kennedy are merely the standards that are apparent on the face of the statute, and the “harsh” tone of the opinion doesn’t really add anything of significance.  To say that AEDPA is “meant to be” a standard that is “difficult to meet” is simply to state the obvious.  Where the rubber meets the road, in this and every case, is in sorting out what exactly constitutes a state court legal analysis that is “contrary to or an unreasonable application of” federal law, and that’s a issue that requires drilling down to a very specific level of detail, not just invoking generalized maxims about how unforgiving AEDPA is.

So while some commentators seem to think that Harrington is a watershed moment in federal habeas litigation, I think over the long term the more significant aspect of the case is going to be the court’s discussion of the more technical/procedural issue of “postcard” denials.

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