The Ninth Circuit panel that decided Irons v. Carey, issued an amendment to the opinion today and denied panel rehearing. Rehearing en banc is still pending. This is the strange case where the panel called sua sponte for briefing on whether the deference standard for federal habeas for state prisoners is unconstitutional, and after much gnashing of teeth decided what everyone knew the whole time: Ninth Circuit precedent settles that question.
Along with some minor editing, there is a new paragraph of Judge Noonan's opinion, along the same lines of his original opinion, expounding on the supposed duty of Congress to enact legislation in certain situations and then concluding that a decision on this question is unnecessary to the question before the court. Right, so why even bring it up? The paragraph includes this gem:
It may be that the right to federal review of a claim of unconstitutional incarceration by a state is now to be considered an essential of due process just as the existence of federal courts to hear cases in numbers that it would be impossible for the Supreme Court to handle alone may be viewed as essential to due process.
Note the uncertain "may" and the passive voice "be considered." Considered by whom? When some consensus of the great and the wise and the wonderful takes hold, then decisions that the Constitution clearly vested in Congress become divested? This is pseudoprofound babbling.
Orin Kerr at the Volokh Conspiracy quotes the whole paragraph and asks, "Does anyone know what that is supposed to mean?" It means Judge Noonan's real, complete retirement is overdue.