This Article criticizes the Supreme Court's treatment of both individualized and categorical bases of relief on federal habeas corpus. Part I notes the Court's trend toward trimming the process that is due in criminal and prisoner litigation generally. This trend may explain the drop in process on habeas as well, but generally declining process cannot explain which rights, if any, should survive the decline. That would require our weighting, if not reconciling, accuracy and dignitary norms, which is the subject of Part II. In Part II, I examine Withrow v Williams, a case from the Court's 1992 Term, which, for reasons that are not altogether clear, preserved federal habeas review of state prisoners' claims that their confessions violated the familiar Miranda rules.
Part III tracks the Court's last three decades of rights-ordering on habeas corpus. From 1965, when the Court began the ongoing struggle with the concept of retroactivity, through the evolving and ubiquitous raise-or-waive and harmless error doctrines, the Court's search for accurate verdicts has made an unconvincing case for treating some rights better than others. Indeed, next to the five other habeas cases argued in the 1992 Term, the Withrow case looks comparatively thoughtful and "Supreme." Ultimately, Withrow shows that barring the federal courthouse door to any constitutional right is far from light work, especially as long as procedure seeks to promote competing ideals like dignity, accuracy, and procedural regularity But to say that reconciling competing values is difficult is not to say that the Court's attempts at doing so have been good. Rather, the Court continually treats some claims and claimants as superior to others for reasons that lack adequate explanation.
This Article concludes that if too many prisoners sue for their freedom, then categorical decisions of inclusion and exclusion of classes of claims would be a more principled form of winnowing out undeserving claims than that which the current, individualized regime provides. To be sure, ordering rights so as to bar some rights from federal review would be difficult-difficult enough that I make no attempt to answer how to select rights for sacrifice, other than by recognizing, as others have, that some out-of- the-courthouse executive behavior might be adequately redressed without the habeas remedy. What matters more is that those hard choices, if made, could vindicate more prisoners than does the Court's increasingly individualized approach to the review of criminal convictions and sentences, an approach that too rarely forms the basis of a prisoner's release from custody.
51 WASHINGTON & LEE LAW REVIEW 669 (1994)