This variance from the truth did not go unnoticed at the time, of course. Justice Harlan wrote an entire section of his dissent under the heading "Departure from History," giving the real history. Professor Dallin Oaks wrote an article titled Legal History in the High Court -- Habeas Corpus, 64 Mich. L. Rev. 451 (1966), refuting the Brennan rewrite. "Legal historians--even those cited in the opinion--hold a view that is at odds with the historical analysis in the Fay case." Id., at 459. Legal scholars were more genteel in their expression in those days, but he still said it's a pack of lies. Louis Mayers wrote The Habeas Corpus Act of 1867: The Supreme Court as Legal Historian, 33 U. Chi. L. Rev. 31 (1965). He found that there was "no foundation" for one of the principal historical claims of the opinion. Id., at 55.

In 1973, Justice Powell called the Fay v. Noia version of history "revisionist" in Schneckloth v. Bustamonte, 412 U.S. 218, 252. He said that it was "recent scholarship" that cast doubt on the revisionist history, but that was a gentlemanly lie to avoid saying that his colleague was writing things known to be false at the time.

Fay v. Noia was pretty much gutted in Wainwright v. Sykes, 433 U.S. 72 (1977), but it didn't get the official ax until Coleman.

In a response to a comment I made there, Joel says "Fay v. Noia isn't even the high point." I will be interesting in reading what he thinks is the high point (or perhaps it should be called the low point) in the next installment.