The Ninth Circuit issued this decision today in the case of Sass v. Cal. Bd. of Prison Terms, which on its face is a not-too-unusual parole case. The BPT made a questionable determination that an inmate convicted of second degree murder in a drunk-driving death 12 years earlier was unsuitable for parole. Between the state courts reviewing the parole decision only for support by "some evidence" and the federal courts reviewing the state court decision only for unreasonable application of Supreme Court precedent, the majority concludes (correctly in my opinion) that the federal court cannot grant relief. Judge Reinhardt fulminates, as expected.
What is interesting here is that the dissent does not question the applicability or constitutionality of the AEDPA deference standard, 28 U.S.C. § 2254(d). Judge Reinhardt recognizes it as controlling and purports to apply it. Yet in the very similar case of Irons v. Carey (CJLF brief here) Judges Reinhardt and Noonan sua sponte called for briefing on whether AEDPA is constitutional. After taking briefing on that issue, the Irons panel issued this order on October 27: "This case is referred to the Settlement Unit to explore a possible solution through mediation."
What do we make of this? Why call for briefing on a constitutional question that would be momentous if there were anything to it, then try to bury the case quietly, then matter-of-factly apply the questioned statute in a similar case without expressing any doubt as to its constitutionality? Perhaps the learned judge has realized that the briefing order in Irons was a huge mistake.