In its 1996 decision in Felker v. Turpin, the U.S. Supreme Court saved Congress from itself, relying on creative legal reasoning to hold that some of the key provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) did not actually raise the serious constitutional questions that they appeared to present. As Felker held, although Congress had meant to foreclose state and federal prisoners from filing most “second-or-successive” habeas petitions (including in some cases in which they had an indisputable claim for relief), that constraint only applied to the lower courts. Appearances to the contrary notwithstanding, Felker held, Congress had left intact the Supreme Court’s ancient authority to entertain “original” habeas applications in such cases, i.e., habeas petitions filed initially in the Supreme Court, a practice blessed by Chief Justice John Marshall as early as 1807. Because review of a prisoner’s constitutional claims remained available in at least one judicial forum, Felker ruled, the AEDPA did not implicate either the prisoner’s constitutional right to judicial review or the role of the federal courts as the ultimate arbiters of the Constitution.

As should be clear, Felker’s reasoning works only if the Supreme Court actually exercises its original habeas jurisdiction in appropriate cases. Otherwise, there will be cases in which there is no judicial forum available in which to adjudicate the legality of the state’s taking of liberty and life—the very condition that Felker held to be constitutionally intolerable.

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