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Washington—The U.S. Supreme Court, which has aggressively created a maze of obstacles to federal review of state prisoners’ sentences and convictions, particularly in death cases, over the past two decades, is now increasingly involved in correcting the lower courts. In the last two terms, the justices decided 29 federal habeas corpus challenges out of roughly 150 total decided cases, or nearly 20% of those dockets, an unusually large single category of cases, noted habeas scholar Ira Robbins of American University Washington College of Law. “Of the 29, the high court reversed in 24 of them-a reversal rate of more than 80%,” he said. “The lower courts generally are reversed in two-thirds to three-fourths of all cases. To have an 83% reversal rate in habeas cases is astounding.” The high court’s death and habeas workload has frustrated some scholars who would like to see the justices taking more cases involving, for example, sentencing issues flowing from recent blockbuster rulings, such as Blakely v. Washingtonand U.S. v. Booker. Sentencing scholar Douglas Berman of Ohio State University Moritz College of Law has “blogged” several times about the habeas monopoly. “I believe the limited number of big criminal justice rulings flows directly from Supreme Court’s apparent obsession with capital cases . . . as well as its constant need to sort out procedurally intricate habeas/AEDPA issues,” Berman said in one recent post. (AEDPA is the Anti-terrorism and Effective Death Penalty Act of 1996.) The Rehnquist Court actually was ahead of Congress in erecting procedural barriers to federal habeas review. Justice Sandra Day O’Connor authored a number of the key rulings and was a decisive swing vote in others. In the 1980s, the Supreme Court, with a docket twice the size of what it decides now, granted certiorari review of habeas cases “maybe once a year, maybe three cases in two years,” recalled Robbins. Toward the late 1980s and early 1990s, the number increased to two to three a year. After enactment of AEDPA, the number “truly skyrocketed,” said Robbins. But until three years ago or so, he added, the cases taken by the high court were not AEDPA cases, but cases dealing with portions of habeas law that AEDPA left untouched.

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