I. Defining the Question.

The first step to answering the habeas corpus riddle is to precisely define the question. This seemingly simple task is made difficult by the truckloads of red herring that are constantly dumped upon it.

The dispute is not about correcting "egregious" errors by state courts. If agreement could be reached that habeas review would be limited to such errors, suitable limiting language could be worked out. The dispute is not about resolving the actual facts of what happened, either in the commission of the offense or in the conduct of the trial. Congress adopted a rule of deference to state court fact-finding nearly three decades ago,⁽⁴⁾ and changes to that rule are not a major bone of contention.

The dispute is not about whether judge-made rules of recent vintage are or are not "important." Of course they are important. But so are the rules of evidence, the rules of procedure, and the rules of substantive criminal law, and we trust all of those decisions to the ordinary appellate process.

The heart of the dispute consists of this rule: a federal district judge presented with a habeas corpus petition must reconsider from scratch ("de novo") close questions of federal constitutional law, on which reasonable, competent, conscientious jurists can and do differ, even though these questions have already been fully considered and decided by state courts. In capital cases, these questions have already been decided by the state supreme court.

In all other forms of litigation, a final decision by a court of competent jurisdiction finally settles the issues between the parties. That judgment cannot be reviewed by any court which does not have appellate jurisdiction over the case. At common law, this was also true in criminal cases. This is true today, for most purposes, of the criminal judgments of the federal district courts and the local court system of the District of Columbia.⁽⁵⁾ The question is, why should it not be true for the judgments of state courts?