Loper Bright Strengthens Challenges to State Criminal Convictions

The US Supreme Court’s Loper Bright v. Raimondo decision has given administrative lawyers a new way to curb agency overreach. It also allows habeas corpus lawyers seeking to overturn state regulatory and other criminal convictions a new way to challenge so-called AEDPA deference to state-court rulings overstepping constitutional bounds.

Before Loper Bright, federal judges convinced that a forced confession, prosecutors’ reliance on false evidence, or any other constitutional violation landed a habeas petitioner in state prison had to leave the flawed verdict in place out of deference to the state judges who approved it. Loper Bright’s reasoning, however, restores federal courts’ duty to enforce the Constitution as they independently read it and order a new trial.

Since the nation’s beginning, Congress has given people imprisoned by a state court the right on demand to federal-court review of properly preserved claims that their convictions violate the US Constitution. Since 1867, lower federal courts have shared that responsibility with the Supreme Court on writ of habeas corpus.

Also from the beginning, federal courts understood their Article III judicial power to require them to interpret the Constitution independently when deciding the federal legality of state courts’ imposition of prison or death.

Enter AEDPA deference. In 2000, a 5-4 Supreme Court read the 1996 Antiterrorism and Effective Death Penalty Act to require federal courts to defer to state-court interpretations of the Constitution, even ones they believe are clearly wrong, unless they are confident that every “fairminded” federal or state court judge in the country would agree that the state court violated the Constitution.

Federal judges and scholars, then and now, have argued that such deference violates federal courts’ Article III duty to interpret the Constitution independently. AEDPA, they note, never uses the word “deference” and is more sensibly read to require only the federal court’s respectful consideration of the state court’s reasoning before making an independent judgment.

The Supreme Court, however, has steadfastly refused to consider the constitutionality of AEDPA deference and has applied it in 70 cases. It seemed AEDPA deference was here to stay.

Enter, now, Loper Bright, reversing Chevron and 70 other Supreme Court cases requiring federal courts to defer to reasonable agency interpretations of unclear laws. Suddenly, the Supreme Court recognized that the Administrative Procedure Act of 1946 requires federal judges reviewing agency action to interpret federal law independently, not deferentially.

As Loper Bright notes, the APA provision governing federal-court review of agency legal interpretations doesn’t say whether review is independent or deferential.

The justices nevertheless felt compelled to read an independent-review requirement into the silent 1946 statute upon rediscovering a “traditional conception of the judicial function” stretching back to the Constitution’s adoption. They quoted James Madison and Alexander Hamilton, saying the final interpretation even of “obscure and equivocal” laws is “the proper and peculiar province” of federal courts alone.

Madison, Hamilton, and the other Framers insisted that federal courts must independently review legal interpretations of any authority not given federal judges’ Article III life-tenure and salary protections against outside influences. And they did so not from fear of administrative agencies, few of which existed.

Rather, as Madison declared, the main reason federal judges must exercise independent review is to protect Americans against “improper Verdicts in State tribunals”—ones, for example, “obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury.”

In 1821 in Cohens v. Virginia, the Virginia Court of Appeals objected to US Supreme Court review of the constitutionality of a state criminal conviction of two men for selling District of Columbia lottery tickets in alleged violation of Virginia regulatory laws. Virginia argued that when a constitutional question is “doubtful” and arises only at the outer “confines of the constitution,” federal courts must defer to reasonable state court interpretations.

Speaking for a unanimous court, Chief Justice John Marshall refused. “Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.” Anything else, he said, “would be treason to the constitution.”

Decisions throughout the nations’ history penned by the likes of Justices Joseph Story, Oliver Wendell Holmes Jr., Felix Frankfurter, and Antonin Scalia, confirm the same traditional conception of the judicial function. On questions of federal constitutional law, federal judges may not defer to any authority other than a superior federal judge. That includes Congress itself.

AEDPA deference falls farther outside that tradition than Chevron deference. As Loper Bright confirms, Congress may require federal courts to defer to agency interpretations of federal statutes if Congress makes clearer than it did before Chevron that it meant to delegate its statutory law-making power to agencies.

When it comes to the Constitution, however, only “We the People” can delegate final interpretive power over the Constitution’s meaning, and Article III delegates it to federal courts alone.

Justice Neil Gorsuch applauded Loper Bright’s rediscovery of the traditional conception of independent federal-court interpretation as placing “a tombstone on Chevron no one can miss.” By resurrecting the same conception against “improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury,” habeas lawyers can stake out a place for AEDPA deference in the same cemetery.

The case is Loper Bright Enters. v. Raimondo, 2024 BL 221307, U.S., 22-451, 6/28/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

James S. Liebman is a law professor at Columbia University.

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