question raised on an application for habeas corpus in the district courts of the United States could have
its facts reviewed and, presumably re-decided, by a single district court judge: “The state court cannot
have the last say when it, though on fair consideration and what procedurally may be deemed fairness,
may have misconceived a federal constitutional right.”
Frankfurter’s justification for allowing federal questions to be heard again by federal district
judges is not a revolutionary call for an expanded habeas jurisprudence but rather a particular reading of
how habeas corpus cases should be adjudicated by lower federal courts. Throughout his opinion he
recognizes that criminal adjudication is fundamentally a state power and that concerns of federalism and
states rights are necessarily implicated. After admonishing the lower federal court for denying habeas
because the Supreme Court had denied certiorari in the case, he issues some caveats concerning the extent
of his allowance for rehearing federal claims that had been fully adjudicated in state courts. “Most
[habeas claims] are without merit,” he asserts, and are “adequately dealt with in State courts.” He then
goes on to cite that in the recent years only 67 of 3,702 habeas cases applications were granted and in
only a small portion of those was the state prisoner ultimately released. Federal habeas for state
prisoners, even considering the paucity of legitimate claims, nevertheless poses a potential problem for
the historical and constitutional relationship between state adjudication of criminal matters (in which they
are mostly sovereign) and those times in which federal constitutional rights are implicated. Therefore,
particular care needs to be paid to the holding in this case. He confirms the need for care by saying:
“The complexities of our federalism and the workings of a scheme of government
involving the interplay of two governments, one of which is subject to limitations
enforceable by the other, are not to be escaped by simple, rigid rules which, by avoiding
some abuses, generate others.”
Nevertheless, Congress has provided the district courts of the United States the power to hear habeas
claims from state prisoners. Interestingly, Frankfurter then goes on to recount, if only briefly, the
expanded habeas jurisdiction granted to the federal courts as a result of the Habeas Corpus Act of 1867.
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344 US 443 at 508. His reasoning here speaks of a particular jurisprudence, articulated by Frankfurter in other
jurisprudential areas, most particularly in his conception of incorporation. This will be addressed later in the paper,
but it is fair to say here that his Brown opinion, while unique in many ways, is not progressively revolutionary.
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Convention