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On the Button

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Almost four years ago, the U.S. Court of Appeals for the Ninth Circuit committed one of the most blatant violations to date of the Antiterrorism and Effective Death Penalty Act of 1996. In its quest to overturn state court decisions it merely disagrees with -- despite the clear command of Congress to the contrary -- that court decided in Musladin v. Lamarque that the California state courts had unreasonably applied clearly established federal law in rejecting a claim that trial spectators wearing buttons had violated Musladin's constitutional rights. Yet the supposedly unreasonable state court opinion was in accord with the decisions of every other court that had considered the question in similar circumstances. See CJLF's brief. A better example of a mainstream state court decision wrongly overturned by a fringe federal court could hardly been found. That is exactly what AEDPA was enacted to prevent, and the case is a prime illustration of why that statute was so necessary.

The Supreme Court took the case and voted 9-0 to reverse. Judge Reinhardt's opinion declaring the state court opinion to be "unreasonable" was itself so unreasonable that not a single one of the nine high court justices voted to affirm it.

Today, the Ninth Circuit finally rejected the remainder of Musladin's claims. Howard Bashman at How Appealing notes, "Suffice it to say that, this time, it won't be the State of California that'll be seeking U.S. Supreme Court review." Musladin can ask, of course, but his chances of getting certiorari are infinitesimal.

1 Comment

Footnote 11 to the opinion is an interesting read. Without directly contradicting the Supreme Court decision, it certainly sends a message of Berzon's displeasure.

Footnote 7 seems a subtle dig at the Early v. Packer decision.

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