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113 Mich. L. Rev. 1219 (2014-2015)
The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court's Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences

handle is hein.journals/mlr113 and id is 1289 raw text is: THE DEMISE OF HABEAS CORPUS AND THE RISE OF
QUALIFIED IMMUNITY: THE COURT'S EVER
INCREASING LIMITATIONS ON THE DEVELOPMENT
AND ENFORCEMENT OF CONSTITUTIONAL
RIGHTS AND SOME PARTICULARLY
UNFORTUNATE CONSEQUENCES
Stephen R. Reinhardt*
TABLE OF CONTENTS
INTRODUCTION.....................................................1219
I. THE DEMISE OF HABEAS CORPUS ...........................1223
A. The Evolution from Independent Review to Near-Total
Deference to State Courts ...............................1224
B. Respect for State Courts at the Expense of Constitutional
Rights .................................................1229
C. The Lack of Clearly Established Federal Law............1232
D. Pinholster and the Court's Barriers to Establishing Factual
Cause for Relief ........................................ 1237
E. The Court's Exceptional Treatment of Habeas Law ........1240
F. How Far We Have Strayed ..............................1243
II. THE RISE OF QUALIFIED IMMUNITY ..........................1244
III. PARTICULARLY UNFORTUNATE CONSEQUENCES ...............1250
C ONCLUSION  ......................................................  1253
C O DA  .............................................................  1254
INTRODUCTION
The collapse of habeas corpus as a remedy for even the most glaring of
constitutional violations ranks among the greater wrongs of our legal era.
Once hailed as the Great Writ, and still feted with all the standard rhetorical
flourishes, habeas corpus has been transformed over the past two decades
from a vital guarantor of liberty into an instrument for ratifying the power
of state courts to disregard the protections of the Constitution. Along with
so many other judicial tools meant to safeguard the powerless, enforce con-
stitutional rights, and hold the government accountable, habeas has been
* Circuit Judge, United States Court of Appeals for the Ninth Circuit. I would like to
thank my law clerk, Jeremy Kreisberg, 2014-15, for his invaluable assistance. The views
expressed are mine alone; they do not represent the views of the United States Court of
Appeals for the Ninth Circuit.

1219

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