Supreme Court Justice Robert Jackson famously wrote in his concurrence in Brown v. Allen,

We are not final because we are infallible, but we are infallible only because we are final.

Finality is a funny thing. A debate has been playing out at Fault Lines over the AEDPA, the Anti-Terrorism and Effective Death Penalty Act of 1996, which has come back into focus because of the presidential race.

Josh Kendrick kicked it off with his post about how AEDPA “castrated” habeas corpus. Judge Richard Kopf followed up, arguing that it reflected a political judgment that habeas can’t go on forever.  Andrew King provided a deep dive into the history of habeas, and argued that our current adoration of innocence distorts our expectations of habeas.

Jeff Gamso, who has stood beside too many dead men walking, calls bullshit on the innocence fetish, and speaks to the fallibility of judges, courts, the system, to get it right for anyone, guilty or innocent.  Of course the creation of law is political; that’s how it’s meant to be. But there is a built-in assumption that a political decision is the right way to arrive at what the law should be. From that starting point, we vest a belief in judges to rise above the partisanship, the making of the sausage, as if this thing called “law” has a right answer.

Take, for instance (and here I return to the subject of innocence), the question of whether the Constitution prohibits the execution of a factually innocent person.  You might think so.  You might say, for instance, that surely it would be a punishment cruel and unusual, and therefore in violation of the 8th Amendment which prohibits such things, for the government to kill someone who didn’t do it.  And it is in fact true that five members of the Supreme Court have said just that.  So it’s clearly established, right?

Wrong.  Because while there’s never been a case where five of the justices said it.  In fact, we’ve yet to have five who are on the court at the same time and have previously said it.  So the principle is not “clearly established.”  Hell, it’s not established at all.

Almost nothing in law is “clearly established” if a judge doesn’t want it to be.  This system built upon ambiguity drives non-lawyers crazy, because they can’t understand how there can be a system with the legitimacy to take away their freedom or fortunes, maybe even kill them, that’s so frail, so fraught with error, so easily subject to dispute with a turn of a phrase that changes nothing and everything at the same time.

We, lawyers, get used to it. We have a high tolerance for ambiguity, because without it we couldn’t do our jobs and our heads would explode. We shrug a lot, not because we don’t care, but because we acknowledge that there is nothing we can do to make it better. We desperately want to make law more like science, more precise and certain, but then the Supreme Court issues a decision that reflects a value judgment in conflict with everything we thought we knew about the law.

We appreciate the concept of precedent, that without stare decisis, we’re paralyzed as to what the law means. When the law is in flux, we’re left without a clue as to what to tell clients, as to how to behave ourselves. If something is perfectly lawful one day, and unlawful the next, there are no rules of the game. It makes us look like idiots, not that we need much help, to have no answers.

Sure, non-lawyers know right from wrong. That’s because they have no responsibility to advise others, and be liable for getting it right. Lawyers don’t worry so much about liability in the sense that someone could sue them for malpractice, but we worry a great deal about steering someone wrong. We may not share the rule, “first, do not harm,” but a good lawyer gives a damn about not being the cause of damage to others.

We look to courts, to judges, and ultimately to the Supreme Court, to give us answers. Not because it’s infallible, but because it’s final. Judge Kopf, who knows a thing or two about judging, having been the guy to decide whether people go to prison forever, reminds us that there is no particular reason why a federal judge’s gut is any better than a state judge’s gut, and that no single federal judge was inherently wiser than a full state bench.

The federal district courts were never intended to give single federal district judges the power to frequently “overrule” the decisions of the state courts, and that is most particularly true for the state Supreme Courts. See, e.g., Charles Doyle, Federal Habeas Corpus: A Brief Legal Overview, at pp. 2-6 Congressional Research Service (April 26, 2006) (prior to AEDPA, it “was said that federal habeas was ‘the most controversial and friction producing issue in the relation between federal and state courts. . . . Commentators [were] critical, . . . federal judges [were] unhappy, . . . state courts resented [it], . . [and] prisoners thrive[d] on it as a form of occupational therapy. . . .”).

Judge Kopf is a legal realist, as am I. That doesn’t mean we necessarily agree about anything, but that we do our best not to wrap up the ugliness in a pretty rhetorical bow to proclaim how a tweak here or there will produce unicorns prancing on rainbows.  There are good, smart, principled judges, and there are judges who got their robe by getting on their knees and blowing the party leader, or telling the vicious torch-holding townspeople that they’ll lead the march to the castle to kill the monster.

Everybody brings their belief system, their value judgment, to the courtroom. Some will look beyond their sensibilities. Most try to jam their square peg into the law’s round hole, not because they’re inherently bad people, but because they believe it’s the right outcome. Those who disagree call them disingenuous and wrong. Sometimes they are. Sometimes they just disagree.

The concept of habeas corpus, as opposed to its historical use, is the safety valve for a legal system that seems to satisfy no one. The reason a single federal judge gets to sit in judgment of the “delusional” state court panel is that habeas corpus gives us one more chance to convince someone with authority to rule our way.

We rely on what the Supreme Court says because that’s how the game is played, even though it’s just a bunch of words. When the judge deciding what to do with a guy’s life doesn’t care for the words, he comes up with new words to explain why the Supreme Court’s words don’t apply. We hope he gets it right. For our side. And then we want it to be final. If not, we want one more chance to fight, even up to the Supreme Court. Not because it’s infallible, but because it’s final.