Counterfactual Contradictions: Interpretive Error in the Analysis of AEDPA
Burns, Amy Knight, Stanford Law Review
INTRODUCTION I. VARIETIES OF COUNTERFACTUAL SPECULATION A. Hard and Soft Counterfactuals B. Counterfactuals in the Law 1. Counterfactual speculation in criminal appeals: harmless error 2. Counterfactual speculation on habeas 3. Refusal to speculate II. COUNTERFACTUAL SPECULATION UNDERAEDPA A. Early Applications B. A Change in Direction: Cullen v. Pinholster 1. Textual arguments 2. Arguments from precedent 3. Appeal to background principles C. The Change Takes Hold: Greene v. Fisher III. CAN THE DEPARTURE BE JUSTIFIED? A. Hard/Soft? B. Inherent in the Situation? IV. A MORE COHERENT APPROACH CONCLUSION
Imagine you are buying a home. The seller provides you with a certificate stating that the property has been inspected for termites and that none were found. You move in. Two weeks later, you discover that the place is crawling with termites, requiring expensive repairs and substantially reducing the value of the house. (The certificate, it turns out, was a fake.) If you had known about the termites at the time of the purchase, you certainly would not have purchased this house. Although a court might award you the costs of extermination and possibly even the difference between the value without the termites and the value with, what you most want is to undo the transaction. After all, no rational person would have made the deal knowing what you know now. Courts sometimes grant this remedy, undoing a contract where there has been, for example, fraud or duress. (1) And what if the sale could not be reversed? You might wish the court would just give you a new house, with all the features you wanted--and without the termites. After all, if there exists a comparable and termite-free house, you almost surely would have bought it to begin with if you'd known what you know now. All of these possible remedies involve counterfactual speculation; to compensate you, either with damages, by undoing the contract, or by giving you the new house, the court will have to assess what would have been, absent the defendant's wrongdoing.
The analysis supporting this type of remedy--assuming that a decisionmaker would have made the rational choice had he had all the relevant information at the time--is precisely what the Supreme Court has just interpreted the federal habeas corpus statute to forbid. Though real estate contracts are a far cry from habeas corpus, the bedrock principle is the same: a need for considering what would have happened if things had gone a little differently.
Specifically, the Supreme Court has recently held that in federal court review of state court convictions under 28 U.S.C. [section] 2254, the state court decision to uphold a conviction must be judged as of the time the decision was made, regardless of what information becomes available thereafter. In Cullen v. Pinholster, (2) the Court grappled with the situation in which new evidence was brought forth in a federal hearing properly held after the state court issued its decision. How was the federal court to evaluate the state court's decision when the state court hadn't heard all the evidence? It could not be done, the Court concluded, because "[i]t would be strange to ask federal courts to analyze whether a state court's adjudication ... unreasonably applied federal law to facts not before the state court." (3) Last Term, the Court addressed a similar question concerning a change in the law between the state court's and federal court's review of the case, and similarly concluded that the change was irrelevant in considering the state court's resolution of a case, regardless of the fact that standard retroactivity principles would make that new law part of the body of law applicable to that petitioner. (4) In other words, subsequently obtained information, no matter how compelling or legally relevant, cannot be brought to bear in evaluating the state court's decision. …