IN "Original Habeas Redux,"1 Professor Lee Kovarsky reminds us of the important—if elusive—role that the Supreme Court's jurisdiction to issue "original" writs of habeas corpus can play in providing one last avenue of judicial review to those challenging their federal or state imprisonment. As Kovarsky notes, this is hardly a new idea: ever since Chief Justice Chase's indirect allusion to such authority in Ex parte McCardle,2 the Court itself has recognized its original habeas jurisdiction as just this kind of backstop—an unorthodox but sometimes necessary means of exercising review in situations where other avenues for relief are either practically or formally unavailable.3 To that end, even though the Court has not issued an original writ in eighty-six years, continuing judicial invocations of the possibility of such relief4 are perhaps the most oft-recurring manifestation of the "time-honored tradition for the Supreme Court . . . to find that Congress did not intend to preclude altogether judicial review of constitutional claims in light of the serious due process concerns that such preclusion would raise."5
Thus, just as was true in the Guantánamo litigation—where original habeas was invoked on several occasions when the jurisdiction of the lower federal courts was in doubt6—Professor Kovarsky sees in original habeas the potential for increasing judicial consideration of certain arguments that, for a host of reasons, have been increasingly difficult to raise in the lower federal courts, especially claims based on "crime innocence" and "death ineligibility."7 Marshaling an impressive set of data concerning the Court's original habeas docket, Kovarsky suggests that circumstances have conspired to place an increasing amount of pressure on the Court's original habeas jurisdiction over the past fifteen years—pressure that may eventually compel the Court to act. Moreover, as he notes, if we are to read anything from the tea leaves in the Troy Davis case, at least some of the Justices appear to agree.8 As Kovarsky concludes, "after almost a century-long period of virtual dormancy, the Supreme Court's original habeas power may be on a revival's precipice."9
I have no quarrel whatsoever with Professor Kovarsky's descriptive account or with his impressive construction of—and conclusions arising out of—the original habeas dataset at the heart of his article. Indeed, I do not think it is an exaggeration to suggest that his work is the most important account of "original habeas" in almost a half-century, since Dallin Oaks's classic article on the subject in the 1962 Supreme Court Review.10 Instead, in the short response that follows, I offer two reflections on Kovarsky's prescriptive thesis—that is, that the increasing pressure on the Court's original habeas docket will eventually impel the Justices to act. First, using the post-World War II war crimes cases as an example, I suggest that the existence of atypical (and increasing) pressure on the Court to use its original habeas jurisdiction in no way ensures that the Court will so act—or at least it may not do so without some underlying consensus as to both the merits of the petitioners' claims and the unavailability of alternative forums. Contrary to Kovarsky's suggestions, the Supreme Court's response to the upsurge in war related original habeas cases in the late 1940s was to punt the issue, and rather categorically, at that.
Second, even if the Court is eventually motivated to wield its exotic power under section 14 of the Judiciary Act of 1789, one might wonder whether, in the long term, such normalization of the original habeas "safety valve" could (paradoxically) undermine its utility, at least to the extent that such a result might precipitate legislation more directly circumscribing the Court's authority. To be sure, any such statute could well raise serious constitutional questions, the answers to which are hardly obvious. But even then, increasing reliance on original habeas would thereby provoke fundamental constitutional questions that the Court has historically done everything within its power to avoid asking, let alone answering.11 Ultimately, the most useful feature of original habeas as a safety valve may be its obscurity, a status that would very much be jeopardized if Professor Kovarsky's prediction comes true. In other words, original habeas is—and has been—more about protecting the Supreme Court's role in the abstract than it has ever been about protecting individual litigants on the merits.