Habeas Corpus and Void Judgments

David Kinnaird*

In a string of recent opinions, Justice Gorsuch and Justice Thomas have posited that postconviction relief upon a writ of habeas corpus was historically unavailable except where the judgment of conviction was issued by a court lacking jurisdiction. In light of this history, Justices Gorsuch and Thomas have argued for a reconsideration of the modern scope of the writ, which generally allows for relitigation of alleged constitutional error in the course of criminal trial.

This Article argues that Justices Gorsuch and Thomas have the history half right. They are correct to assert that a valid judgment of conviction was a sufficient answer to the habeas inquiry. They are mistaken, however, on three fronts.

First, a want of jurisdiction was not the lone circumstance where a judgment of conviction was insufficient cause for confinement. Rather, a petitioner was entitled to relief whenever the custodian could not provide the court with “due process of law” justifying detention—“due process” not in the modern sense of the phrase, but as in lawful writs and precepts duly issued forth from a court of law. The jurisdiction of a convicting court was relevant because a judgment issued in excess of jurisdiction was void. Where a prisoner was held under a void judgment, it was as if they were held under no judgment at all. In this way, such petitioners stood in the same position as one subject to arbitrary detention by an executive officer.

Second, insofar as Justices Gorsuch and Thomas are using “jurisdiction” in its modern sense, their assertion that postconviction habeas relief was unavailable except for a want of jurisdiction is anachronistic. Eighteenth- and nineteenth-century jurists spoke of “jurisdiction” in a broader sense, as in “the power of a sovereign to affect the rights of persons,” a notion not limited to exercise of the judicial power. Jurisdiction could be analyzed through a variety of different, nonexclusive vectors. One vector particularly relevant to the habeas inquiry was “jurisdiction over the process”—power to issue particular writs and precepts, a power which could have various subject-matter, territorial, and personal limitations, many of which were constitutionally prescribed. This concept has been almost completely overlooked in the habeas literature.

Third, a want of jurisdiction was not the only condition that would render a judgment void ab initio. To give judgment is a volitional act. Thus, the traditional vices of the will—fraud and duress—could also render a judgment void. But when such cases finally came before the Supreme Court, consistent with the realist jurisprudence of the early twentieth century, the Justices described such circumstances as “denials of due process” rather than questions of the general law of judgments. This conceptual error, while harmless at first, eventually led to the total erosion of traditional habeas doctrine.

In light of this history, this Article concludes that the problem with modern habeas practice is not so much the breadth of inquiry, but the manner in which it proceeds. A habeas court has no power of vacatur over a final judgment of conviction, as it would were the judgment brought before it on a writ of error or on an appeal. Much like judicial review of statutes, a habeas court’s only power is to recognize what has already been done by operation of law.

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© 2025 David Kinnaird. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Research Fellow, Georgetown Center for the Constitution. Many thanks to Richard Re, Lee Kovarsky, Micah Quigley, Will Kamin, Clarke Forsythe, and Rachel Bayefsky for their comments and suggestions on earlier drafts of this article.