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Irons, At Last


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. ยง 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.


Your examples don't go to whether Congress can legislate deference. Setting affirmative defenses (SOL) and limitations on remedies are not the same as prescribing deference to another court's decision on the merits.

The First Congress enacted a law requiring federal courts to enter judgment based on state court decisions, even if they think those decisions are wrong on questions of federal law. That act remains in force to this day, and its constitutionality is not in doubt.

Kent --

Your "first Congress" response doesn't prove anything. In those days, state courts were issuing writs of habeas corpus to release federal prisoners. See the Taney and Lincoln book for many examples.

For a site that decries "ad hominem attacks, name-calling," etc., you are fast and loose with the "loony-left image". That only seems to be the case from the point of view of the overreaching right. The other point of view is that federal rights require federal remedies and a federal forum in which to adjudicate them.

I take by your "now enough judges" comment that you welcome the presence of Torture Memo Bybee to the 9th.

The fact that state courts were issuing writs for federal prisoners prior to Booth does not in any way diminish the fact that Congress has always had the power to specify the preclusive effect federal courts must give state judgments and has exercised that power from the beginning.

As for the Ninth's "loony-left image," lighten up. That is a humorous reference to an image the court has, justifiably, in the view of a great many people, including many moderate liberals. I think that several of the moderate liberals on the court are concerned about that image and wish to change it.

Judging from his opinions so far, yes, Judge Bybee is a positive addition to the court.

Anybody remember 5th grade civics class? The executive branch enforces the laws. The legislative branch makes the laws. And the judicial branch ...?

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