The seemingly mundane parole case of Irons v. Carey gained national attention with a bang on May 18, 2005, when the Ninth Circuit panel sua sponte asked for briefing on the question of whether the deference standard for federal habeas review of questions already considered by the state courts, 28 U.S.C. § 2254(d)(1), is constitutional. That question had been thought to be long settled, as every circuit to consider the question, including the Ninth, had decided it was.

CJLF's brief is here. Prior posts are here, here, here, here, and here.

Today, the case ended with a whimper as the Ninth denied rehearing en banc. The dissent, surprisingly, is from Judges Kleinfeld and Bea, protesting the opinion's dicta and Ninth Circuit precedent obscuring the line between holding and dictum. Not a peep about AEDPA from the authors of the previous grousing concurrences.

It would appear that there is very little enthusiasm on the court to produce an en banc opinion that would surely be smacked down in short order by the Supreme Court. That is a hopeful sign. The Ninth will not be a conservative or even middle-of-the-road court in the foreseeable future, but at least the fringe is no longer running things.