Judge Lawrence Waddington (L.A. Superior Court, Ret.) has this provocative essay at LinkedIn. He goes through the well-known (to readers of this blog) misuse of habeas corpus jurisdiction by the Ninth Circuit and calls for an end to it.
Politically, I don't think it would be wise to bring the matter up in Congress at all at this time. The final product could easily move us in the wrong direction.
The time has come for the Supreme Court to reinterpret federal habeas corpus law and remove the 9th Circuit from any further jurisdiction over state court decisions. Not only will removal reduce the endless appeals of 9th Circuit mandated retrials and the cost and interference with state sovereignty, the record would confirm finality of state court judgments and stop the endless reversals resulting in injustice. No reason justifies two jurisdictions trying the same case twice.I agree that federal habeas review of state court judgments is doing more harm than good in California and in some other places. I don't think the Supreme Court has the authority to make the call any more, though. During the period from Reconstruction through the mid-twentieth century, the Supreme Court did expand the use of habeas corpus to make it a mechanism to collaterally attack in federal court the judgments of state courts of general jurisdiction. That use of the writ was not permitted at common law or under the initial federal system, and contrary to myth it was not authorized by the 1867 act. (That is a long story I have written about extensively elsewhere and won't repeat here.) However, a lot of legislative water has passed under the bridge since then. In 1996, Congress expressly considered the three-way choice of de novo review, no review, or deferential review and chose the latter. I don't think it is up to the judiciary to alter that choice, particularly not on a state-by-state or circuit-by-circuit basis.
Politically, I don't think it would be wise to bring the matter up in Congress at all at this time. The final product could easily move us in the wrong direction.
The fix should come from the Supreme Court. It has the inherent power to remove certain judges from the ability to rule on habeas cases--it should do so. To not do so is to permit lawlessness.