Some insider perspective on House

Professor Rory Little, whose helped drafted the amicus brief filed by the American Bar Association on the defendant's behalf in House v. Bell, shared with me some of his personal (and initial) reflections on the Supreme Court's House ruling.  With his posting permission, here are highlights:

House is an extremely important decision, in the larger context of the nationwide march toward fully appreciating "actual innocence" claims, and for habeas law in particular....  House importantly makes it clear that DNA claims can get through the Schlup v. Delo "gateway" for "procedurally defaulted" habeas claims.

Of course, Justice Kennedy's decision is not a clear bell-ringer for DNA alone, but rather the sort of fact-intensive incremental case he and Justice O'Connor (whose spirit is felt here, by extensive references in Justice Kennedy's majority, if not her presence) are known for....  Still, it appears to end the extremely stringent (practically impossible) interpretations of Schlup that some lower courts have used....

The result here is also a bit like avoiding a car crash: if it had gone the other way, then DNA-based actual innocence claims around the U.S. would have been dealt a body blow.  And thank goodness Justice Kennedy avoided the "trap" of limiting the decision to just capital cases: "Actual innocence" claims, particularly those involving DNA evidence, should be treated equally, regardless of the penalty....

Finally, it is a shame that the majority felt it necessary to opine that the alternative "free-standing" innocence standard of Hererra v. Collins is "higher" than the Schlup gateway standard.  As the ABA Amicus explained, that such a difference was intended is actually not at all clear from a careful parsing of the precedents leading to Hererra and Schlup.  Nor was this necessary to the decision....

Thus why the Court felt it necessary to opine seems unclear at best.  It is not likely that this was the "price" necessary to get a majority for House; instead, it seems to be Justice Kennedy's own price for staying with the majority.  But without him, the case goes 4-4, gets reargued with Justice Alito participating and likely goes the other way.... 

I imagine habeas scholars and lower courts will have a fun and laborious time picking apart the niceties between the majority and dissenting opinions.  But on the global scale, this was a good, and absolutely necessary, decision for the "actual innocence" movements across the country.  Three cheers for the "Stevens Court"!