En Passant Suspension Clause Originalism in Jones v. Hendrix
In Jones v. Hendrix, Justice Thomas wrote for a 6-3 Court that divided on ideological lines. The case is complicated, but it's important for what it says about the constitutional status of habeas corpus. Accordingly, I ask readers to bear with me as I set the table for a discussion of what I regard as the key point.
Jones posed the question of how to interpret 28 U.S.C. § 2255 -- the statutory provision that governs post-conviction review for federal prisoners. Section 2255 operates as a limit on 28 U.S.C § 2241, which authorizes federal courts to grant writs of habeas corpus. Like the parallel provision limiting habeas for state prisoners (28 U.S.C. § 2254), Section 2255 as amended by the Orwellian-titled Antiterrorism and Effective Death Penalty Act (AEDPA) imposes various procedural and substantive limits on the availability of habeas. One such limit is contained in subsection (h) and generally forbids someone who has already filed at least one § 2255 petition from filing another one unless it relies on either (1) newly discovered evidence proving the petitioner's innocence or (2) a "new rule of constitutional law" that has been made retroactive to apply on habeas.
In 2000, Jones was convicted of violating 18 U.S.C. § 922(g) because he possessed a firearm (connected to interstate commerce) despite having a prior felony conviction. He was sentenced to over 27 years in prison. Jones won a nominal victory via a § 2255 petition, resulting in the setting aside of a concurrent sentence, but that didn't reduce his total imprisonment or alter his conviction. Then, in 2019, the Supreme Court decided Rehaif v. United States, which construed § 922(g) to require the government to prove that a defendant must have known of the condition that rendered him ineligible to possess a firearm. Jones went back to court, bringing another § 2255 petition and claiming that he was innocent under Rehaif because at the time of the offense he believed (erroneously but reasonably and in good faith) that his prior conviction had been expunged and thus he didn't realize that he was barred from firearms possession under § 922(g).
The district court, appeals court, and Supreme Court (today) all rejected Jones's petition. Justice Thomas explained for the majority that Jones satisfied neither exception to the bar on second or successive petitions in § 2255(h). He was not relying on newly discovered evidence, and while Rehaif announced a new rule, it was not a new rule of constitutional law but merely a new rule of statutory construction.
To reach that result, the Court had to reject the argument that even though the petition didn't fall within either exception in § 2255(h), it fell within § 2255(e), which allows for the bringing of a habeas petition where "the remedy by motion is inadequate or ineffective to test the legality of his detention." Although I've referred to § 2255 as containing rules governing habeas petitions, that's not precisely right as a matter of terminology. Section 2255 authorizes a federal prisoner to bring a "motion" in the court that convicted him; that motion is in most respects effectively a habeas petition. What subsection (e) does, according to Jones, is to provide a catchall so that where § 2255 is for one reason or another not sufficiently equivalent to habeas, a federal prisoner can still proceed by a conventional habeas petition under § 2241.
Justice Thomas and the SCOTUS majority in Jones rejected that reading of subsection (e) on various grounds, but the core of the argument was that accepting it would render AEDPA virtually toothless. The point of subsection (h), he said, is to limit the exceptions to the no-second-or-successive petitions rule to two circumstances: newly discovered evidence showing innocence and new constitutional rules that apply retroactively. Justice Thomas read subsection (e) narrowly to apply to procedural inadequacies, such as circumstances in which a prisoner is being held in custody far from the court of conviction, so that filing a § 2255 motion in that distant court would not be practical.
In construing subsection (e) as narrowly as it did, the Court rejected contrary arguments by Jones, by Justice Jackson in a lengthy solo dissent, by Justices Sotomayor and Kagan in a short joint dissent, and even by the Solicitor General, who declined to defend the appeals court's reasoning (but offered a different and narrower ground for affirming). The Court also rejected what had been the view of nearly all of the federal appeals courts.
I am not now interested in who had the better argument regarding the text and history of the various statutory provisions. Instead I want to focus on an important disagreement between Justice Jackson and the majority.
In favor of her reading of subsection (e), Justice Jackson invoked, among other things, the principle of constitutional avoidance. She said that denying this federal prisoner the ability to seek relief under § 2241 or § 2255 raises serious constitutional questions under the Eighth Amendment--because it is arguably cruel and unusual punishment to keep someone in prison for what was, if his argument for "legal innocence" were accepted, not a crime--and the Suspension Clause--because the constitutional right to habeas includes claims of legal innocence. ("Legal innocence" in both of these contexts means that if a court accepts the construction of the underlying statute--here the notion that belief that a conviction was expunged vitiates culpability under 18 U.S.C. § 922(g)--then there has been no crime.)
Let's focus on the Suspension Clause argument. As I read Justice Thomas's response for the majority, he said that there is no Suspension Clause violation because the original understanding of habeas corpus does not extend to collateral review of anything other than whether the court of conviction had jurisdiction. Justice Thomas cited last year's decision in Brown v. Davenport for this proposition, but that was not a Suspension Clause case.
Although Justice Thomas was not wrong that the original understanding of the Suspension Clause made it applicable chiefly to executive detention, with only very narrow application as a collateral remedy, in Jones he went on to say, in effect, that the Suspension Clause goes no further than its original understanding. That claim--call it Suspension Clause originalism--is in considerable tension with the Court's prior attitude. Consider the following statement by Justice Kennedy, speaking for the majority in Boumediene v. Bush: "The Court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ."
Of course, Justice Thomas, as well as Chief Justice Roberts and Justice Alito--who, along with the more recent Republican appointees, joined the majority opinion in Jones--dissented in Boumediene. And given their invocation of original meaning when it suits their ideological druthers in other contexts (but not when it doesn't!), it's hardly surprising that the conservatives would use originalism as a ground for narrowly construing the Suspension Clause.
Even so, and even if there was never much of a likelihood that the Roberts Court would find that the Suspension Clause had evolved to cover a substantial variety of collateral claims, it would have been better if the Court had delivered the coup de grâce after genuine consideration of the alternative, rather than, as it did, almost en passant.