Vanderbilt Law Review

Article Title

Habeas and Hubris


Barry Friedman

First Page



In 1965 the Supreme Court made clear that state prosecutors were virtually free to exercise peremptory challenges to remove blacks from criminal juries for no reason other than their race.' Roughly twenty years later the Supreme Court changed its mind: "The core guarantee of equal protection . . . would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions [of bias], which arise solely from the jurors' race."

The right to counsel experienced a similar reversal of fortune. About fifty years ago the Court decided that "fundamental fairness" and a "universal sense of justice" did not require the state to provide counsel to one accused of a felony. Some twenty years later the Court recanted: "[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.'

The right to counsel and the right to freedom from discriminatory peremptory challenges are not unique. The same evolution has been evident with regard to the right to a jury trial, the right to be free from compelled self-incrimination, and, indeed, virtually all of the rights guaranteed by the Bill of Rights and the due process clause. Admittedly, the decades between 1950 and 1980 witnessed sea changes in the interpretations of those rights. But contrary to the views of some,' due process always has been a fluid concept; to fix the meaning of due process "would be to deny every quality of the law but its age, and to render it incapable of progress or improvement."

The interpretation of the meaning of "due process" has been the product of ongoing dialogue among state and federal courts and legislatures. In this dialogue the federal district courts have, for the last forty years, played an important if not starring role. Ever since the Supreme Court's decision in Brown v. Allen, the lower federal courts have exercised their habeas corpus jurisdiction to define and enforce the commands of the due process clause.'