This Essay suggests that many of the same reasons why Saucier proved so controversial--and perhaps even unworkable--in qualified immunity cases are less salient in the context of post-conviction habeas corpus, where the value of reaching potentially unnecessary questions of constitutional law far outweighs the cost. Put another way, my thesis is that, even though the Saucier sequence is no longer mandatory in qualified immunity jurisprudence, such a rigid methodological order of battle would be of great utility in the context of post-conviction habeas corpus--and in the adjudication of “new” rules of criminal law more generally. In that context, this Essay argues, the case for rights-first constitutional adjudication is far stronger. To elaborate upon this argument, Part II begins with a brief descriptive overview of the Supreme Court's post-conviction habeas corpus jurisprudence, focusing on the particular significance of “new” rules of criminal law, and their applicability. Part III introduces the Court's qualified immunity case law, and explores both the origins of the Saucier sequence and the growing criticisms of the rights-first approach that led to its overruling this Term in Callahan. Finally, Part III turns to whether the Saucier sequence could be extrapolated into the context of post-conviction habeas corpus, considering both why it might work, and the counterarguments against it. Ultimately, as this Essay concludes, although AEDPA's deferential standard of review crystallizes the problem that federal courts face in post-conviction habeas cases today, the need for rights-first adjudication in that context actually predates the 1996 statute--and will survive any legislative attempt to repeal it.
Stephen I. Vladeck, AEDPA, Saucier, and the Stronger Case for Rights-First Constitutional Adjudication, 32 SEATTLE U. L. REV. 595 (2009).