Vladeck: What does the Constitution really say about post-conviction habeas?

Last week saw the publication of Texas Law Prof. Stephen I. Vladeck’s latest article, The Constitutional Right to Collateral Post-Conviction Review, in the Virginia Law Review. In it, he and co-author Carlos M. Vasquez, a Professor of Law at the Georgetown University Law Center, take a closer look at one of less-discussed—but, in Vladeck and Vasquez’s view, more consequential—opinions of the 2016 Supreme Court Term. We spoke with Prof. Vladeck about the article, his own history with the Constitutional principles involved, and what his next big project will be about.

You have a new law review article out this past week, “The Constitutional Right to Collateral Post-Conviction Review.” This topic is close to your intellectual heart, isn’t it? You’ve written a number of amicus briefs in the Supreme Court on the topic, and you often cover post-conviction habeas cases for SCOTUSblog, most recently the Davila case from Texas last Term.

I’ve long thought that habeas in general, and post-conviction habeas, in particular, are among the most important topics of study for those, like me, who teach and write about the federal courts as an institution. It’s not just that these are cases about the most important liberty—the freedom from wrongful detention—it’s that they tend to raise fundamental questions about the relationship between the federal courts and other institutions within our federal system. And although I’m in the minority, I’m of the view that the Constitution has a lot more to say about habeas, even for convicted prisoners, than we’ve previously recognized.

What case is this article about?

It’s about the January 2016 decision in Montgomery v. Louisiana. My co-author, Carlos M. Vázquez, and I are arguing that the opinion in Montgomery, authored by Justice Kennedy, has dramatically upended the prevailing academic and judicial wisdom on the structure of post-conviction habeas review. Moreover, we think this was an overlooked aspect of a Supreme Court Term that was, let’s face it, completely dominated in the public conversation by Justice Scalia’s death and the subsequent questions about filling his seat.

Indeed. So what is going on in Montgomery?  

The longstanding assumption about post-conviction habeas is that it’s a matter of legislative grace, and so there are no constitutional problems with the numerous ways in which Congress and the Supreme Court have constricted it over the past two decades. But the Montgomery decision raises serious questions about that view, because it holds that there is a constitutional right for prisoners to take advantage of new constitutional interpretations by the Supreme Court that undermine the substantive legal basis for their conviction and sentence. To be sure, it’s not a new idea that prisoners could take advantage of such “new rules” of federal constitutional law. What is new is Montgomery’s conclusion that this right is grounded in the Constitution itself—and so, as we argue, can’t be constricted in either federal or state court.

This could have profound practical import for current prisoners and the courts, yes?

In the near-term, this is a big deal because it should require state courts, and not just federal courts, to open their doors to more claims from prisoners based upon new Supreme Court rulings. In the longer term, it raises the million-dollar question: If this one hyper-specific aspect of post-conviction habeas is constitutionally required, what other aspects are, or at least, might be? In a way, the Montgomery Court crossed a hitherto-protected constitutional Rubicon. Now what?

Did you write this article, then, more with legal scholars or appellate attorneys in mind? Or is that a distinction without a difference, as far as you’re concerned?

I can’t speak for Carlos, but I don’t think there’s any question that we’re hoping lawyers and judges will read our article and take it seriously. And we already have some evidence that this is happening; it’s been invoked in a couple of different state court proceedings to argue in favor of the very rights we think Montgomery compels. As always, the question is whether the powers that be agree with us.

In light of this article, and your other recent work on habeas, do you have more you’re thinking and writing about in the near future with regard to post-conviction habeas, or will you wait and see what the true post-Montgomery landscape looks like first?

I think it’s going to take time for the courts to catch onto (and up to) Montgomery’s true implications. It’s going to be interesting to watch that process unfold, but I don’t think there’s an obvious next article on the topic—yet.

For more on this, people should read the actual article; it’s fascinating. What are you working on next?

I’m actually switching gears somewhat dramatically to a project I’ve been chewing on for a few years about civil-military relations. We take it as a given that the Constitution does—and should—guarantee civilian control of the military, and that, indeed, this was a really important departure from the British model. But there’s a related principle that may be equally important, but that gets far less attention: the idea that the military generally should not be involved in civilian affairs—what might be called “military non-control of civilians.” We see this in use of the military for law enforcement (which is circumscribed by the Posse Comitatus Act), the ban on military officers holding most civil government offices, and the limits on the military’s power to try civilian offenses and/or offenders. I’m planning to write about this principle, about some of the key (if obscure) statutes that protect it, and about some of the ways (obvious and otherwise) that it’s come under assault in recent years. Indeed, this upcoming Supreme Court Term could provide the Justices with several opportunities to reaffirm the military’s non-control over civilians, so it’s potentially an auspicious moment for such a study.