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procedure, with only the caveat that it not violate constitutional provisions. It is not unimportant that
Brown v. Allen decision, which according to many scholars drastically altered habeas procedure, was
authored by Frankfurter. Even the changes in Brown, then, have to be understood as still accepting, and
even advancing federalist and states’ rights concerns.
With the ascendance of Earl Warren to the Court, and the retirement of Frankfurter and other
states’ rights and anti-incorporationist justices, the Fourteenth Amendment’s due process clause was
applied to the states with great speed. If moderate states’ rights and moderately racially egalitarian
principles motivated the past three decades of habeas and due process jurisprudence, the Warren Court’s
decisions were dramatically anti-states’ rights and dramatically egalitarian. The changes to habeas in
Brennan’s decision in Fay v. Noia in 1963 were consciously developed to ensure that the federal
government, and specifically the district and circuit courts, could monitor and enforce the simultaneous
application of an ever-increasing application of the Bill of Rights to the states. Initially, incorporation
decisions like Gideon met with little hostility, as a vast majority of states had already had right to counsel
provisions in their state constitutions. Habeas, though, was met with resistance, as those legitimately
concerned with state-federal relations argued that this traditional balance was upset. As the decade
moved on, and more incorporation decisions were issued, and more state defendants had access to federal
habeas courts, the backlash increased dramatically. With Escobedo v. Illinois and Miranda v. Arizona,
state judiciaries, legal academics, and even Congress, felt that the court had moved too far too soon.
Habeas initially began with a moderately conservative basis in correcting blatant due process
violations in southern courtrooms, all the while with an identifiable deference to federalism. Its
jurisprudence never fundamentally changed. However, when linked to a due process agenda that did
change dramatically, the coalition between habeas and incorporation began to disintegrate. The
independent but simultaneous development of habeas, incorporation, and racially based criminal justice
reforms came together in a short, but dramatic, period during the Warren Court. The non-simultaneity in
the development of each, though, ultimately spelled the end of a project of strong federal habeas corpus
for state prisoners.
Convention