Victim Buttons and the Depths of Jurisprudence

Much of the frustration expressed by myself and others regarding Monday’s extremely terse Supreme Court opinion in Carey v. Musladin is rooted in the provision of the Anti-Terrorism and Effective Death Penalty Act that forbids a federal court from granting post-conviction habeas relief to a state prisoner unless the prisoner’s custody rests ultimately on a state court decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” That means that a state prisoner cannot get federal habeas relief even if the state courts did make a constitutional error, so long as the error was not unreasonable, in light of Supreme Court precedents on the books at the time of the state court rulings. The provision, which is codified at 28 U.S.C. § 2254(d)(1), is meant to protect state courts that try in good faith to follow Supreme Court precedents but reasonably fail to anticipate rights-expanding decisions, by not requiring retrials under such circumstances (subject to a couple of narrow exceptions).

There is a large literature on the virtues and vices of this provision, but here I want to focus on a different feature of 2254(d)(1), its embrace of legal positivism. H.L.A. Hart famously wrote that where the law has an “open texture,” it confers discretion on judges and others who act in its name. 2254(d)(1) is one of several places in which the law recognizes its own open texture. Other examples include the qualified immunity of enforcement officers who violate the law but do not violate clearly established rights of which a reasonable officer would have been aware, and the case law interpreting Federal Rule of Civil Procedure 11, which forbids the filing of objectively frivolous claims, defenses and other papers, but which permits lawyers to be reasonably wrong on the law (and/or facts). These legal tests are easy enough for followers of Hart: where someone acts within the space of the law’s open texture, he or she does not need to predict exactly how a future court will resolve the legal ambiguity. But what can Ronald Dworkin and his followers make of such legal tests? Dworkin famously denied that open-textured legal rules confer discretion. He argued (and continues to argue) that even in the hard cases governed by such rules, there really are right (and thus also wrong) answers.

Dworkinians have two unpalatable options with respect to tests like those of 2254(d)(1), qualified immunity, and FRCP 11. First, they could say that these rules are in some sense wrong, or in the case of the statute and rule, at least wrongheaded. These rules mistakenly assume that judges have discretion in hard cases, the Dworkinian might say. The difficulty with this approach for the Dworkinian, however, is that the whole aim of Dworkin’s philosophy is to provide an interpretive account of law that makes it hang together as well as possible, and dismissing whole bodies of law as “wrong” or “wrongheaded” does not do very well by that standard.

The second option available to Dworkinians is to acknowledge that when the law appears open-textured, it’s not fair to hold states, enforcement officers and lawyers to an impossibly high standard in guessing how the ambiguity will be authoritatively resolved, but the fact that people disagree about the right answer in some case does not mean that there is no right answer. The problem with this approach is that it reduces Dworkin’s disagreement with Hart to a matter of semantics or metaphysics. What good is it for the very practical activity of law for us to know that there exist—somewhere beyond the stars?—really right answers to hard questions, if there is no reliable mechanism for us agreeing on what they are? Students of philosophy will hear in my critique of Dworkin an echo of the pragmatism of William James and Richard Rorty.

Footnote: For an excellent academic treatment of the relation between jurisprudence and the judge-made precursor to 2254(d)(1), see Linda Meyer, Nothing We Say Matters: Teague and New Rules, 61 U. Chi. L. Rev. 423 (1994).