Jackson, J., dissenting
“manifes[t] a well-established congressional policy not to strip [noncitizens] of advantages gained under prior laws”).
2
Fast forward to 1996: Congress reenacted the saving clause—using identical language—when it passed AEDPA. §2255(e); §2255 (1948). Thus, because the saving clause operated in 1948 to “save” from inadvertent extinguishment habeas claims that were available before the enactment of §2255, the same was true when Congress revised those procedures in the mid-1990s, while keeping the saving clause intact. In other words, both in 1948 and to this day, the saving clause operates to (among other things) ensure that §2255—or the AEDPA amendments—did not, through inapt language, substantively alter the scope of available postconviction relief for federal prisoners.
This is not to say that Congress necessarily carried forward all of its previous policy determinations with respect to the availability of postconviction claims, or that it did not change its mind at all about the appropriate dimensions of postconviction relief. Indeed, habeas is a dynamic remedy, and congressional enactments contribute to its evolution. See Felker v. Turpin, 518 U. S. 651, 664 (1996); see also 2 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure §28.4[a], p. 1738 (7th ed. 2020) (Hertz & Liebman) (“Anglo-American law … has imposed an evolving set of restrictions on second and subsequent petitions”). But, again, the saving clause—which served an important equalizing function—remained intact when Congress reenacted §2255 in 1996. Thus, while Congress can certainly act to change the scope of habeas or its statutory equivalent if it wants to do so, in order to overcome the operation of the saving clause (which, again, was inserted to maintain equivalence in the absence of intent to make a change), Congress has to make said change to the availability of
