In the case of Hilton, Superintendent, New Jersey State Prison et al. v. Braunskill (1986), the U.S Supreme Court ruled that a federal court has discretion to release a state prisoner on bail pending appeal of a habeas corpus decision in favor of the prisoner. The ruling was based on traditional factors used to decide if an individual should be granted bail: risk of flight and danger to community; it also considered whether or not there is substantial question about the case which could result in reversal or new trial for issues other than harmless error. In this particular instance, respondent Braunskill had been convicted for murder but later won his habeas petition at district court level due to ineffective assistance from his counsel during trial; however, he remained incarcerated while awaiting appeal by prison officials as per Third Circuit's rule denying bail in such situations.

In the dissenting opinion for Hilton v. Braunskill, Justice Thurgood Marshall argued that the majority's decision to allow courts to consider factors beyond flight risk and danger in deciding whether or not to grant bail pending habeas corpus review was a departure from established precedent. He contended that this would lead to an unfair system where those with resources could secure their freedom while awaiting appeal, but those without such means would remain incarcerated. Furthermore, he expressed concern about how this ruling might impact public perception of the justice system and potentially undermine its credibility by creating a two-tiered system favoring wealthier defendants. Additionally, he disagreed with the majority's view on what constitutes "clearly erroneous" findings of fact by lower courts during habeas proceedings.