USCA9 has finally issued its opinion in Irons v. Carey, No. 05-15275. The opinion of the court is a fairly mundane rejection of a parole claim, and it drops into a footnote the issue of whether the deference standard of AEDPA, 28 U.S.C. § 2254(d), is constitutional.
[W]e are now persuaded that Duhaime v. Ducharme, 200 F.3d 597 (9th Cir. 2000), answers that question, correctly or not, for the court. A three-judge panel of this court is without authority to overrule a holding of an earlier panel.
Now persuaded? It wasn't perfectly obvious from day one?
But wait ... there's more. It's in the concurring opinions.
Judge Noonan waxes indignant that Congress has clipped his wings and limited his ability to substitute his own opinion for that of the considered judgments of the highest courts of the several states.
Congress has the power to determine the jurisdiction of all federal courts.
Congress does not have the power to determine how a federal court shall decide a case.
Sure it does. Making rules of law that determine how courts decide cases is the very heart of the legislative power. For example, when Congress makes a law setting a statute of limitations on a particular cause of action, it tells the courts to dismiss any such case brought too late, even if the plaintiff originally had a valid claim. Congress creates remedies, and Congress can place limits on remedies. The use of habeas corpus to collaterally attack final judgments in felony cases is contrary to the common law. Congress has authorized this variation, but Congress can limit the exception to the cases where it is most needed. Further, Congress can, and from the very beginning has, specify the preclusive effect that federal courts must give to state court judgments in the same or related cases.
Judge Noonan proceeds through a straw-man argument, setting up the defense of AEDPA as a greater-includes-the-lesser argument based on Congress's control of jurisdiction. He ignores the primary arguments summarized above, even though they were presented in the briefs submitted in response the court's order and in the law review article (by yours truly) written in response to the article presenting the argument adopted by Judge Noonan. See Scheidegger, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum.L.Rev. 888 (1998).
Expressing his frustration that he can't make up new rules and impose them on the states, Judge Noonan even quotes without attribution one of the most notorious phrases in the history of judicial activism, saying that AEDPA "denies the deference due the penumbra and emanations of precedent...." This is, indeed, a fitting opinion to be issued on the sesquicentennial of Dred Scott.
Judge Reinhardt chimes in with a concurrence of his own, saying in essence, "me too."
Judge Fernandez denounces the attempt to "create an umbrageous, or stealth, conflict in our jurisprudence...." Right. (BTW, your honor, please burn your thesaurus.)
We can expect that Judges Reinhardt and Noonan will call for an en banc vote, even without the petition that will surely follow. I think there are now enough judges on the Ninth who are within the mainstream and embarrassed by the Ninth's loony-left image that the call will be rejected, but it will be interesting to see.