University of Miami Law Review


The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question—one of recognized significance for contemporary debates about the proper scope of habeas review. This Article provides a new answer. It argues that, until the enactment of Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), it was broadly accepted that state prisoners were entitled to plenary federal review of the legal and mixed law/fact questions decided against them by state courts. Until 1916, such review was provided by the Supreme Court; after 1953, such review was provided by the lower federal courts via habeas. The situation between 1916 and 1953 was murkier. This Article shows that this was a transitional period marked by disagreement among the Justices as to the appropriate federal forum to review state court decisions resulting in custody. At the beginning of this period, a majority of Justices continued to insist that the responsibility rested with Supreme Court. Towards the end of this period, the Court shifted this responsibility to the habeas courts as a majority of Justices came to recognize that the Court could no longer hope to monitor state court criminal convictions. The Justices during this period agreed that federal review of state court convictions was necessary, but disagreed about which federal court should provide such review. The scope of habeas jurisdiction during this period, as before and after, reflected the Justices’ views about the proper allocation of jurisdiction among federal courts to review the state courts’ decisions on constitutional questions arising in criminal cases resulting in custody.