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Rice v. Collins:
The Supreme Court has once again unanimously reversed the Ninth Circuit for its failure to apply AEDPA properly. Today's decision is Rice v. Collins, and reverses an opinion by Judge Paez. In case you're following a long at home, it has been a full 10 weeks since the Court's most recent unanimous reversal of the Ninth Circuit for failture to apply AEDPA. I'm guessing that Musladin v. Lamarque may be next, but then there may be other cases in the pipeline that are decided first.
Kent Scheidegger (mail) (www):
Much has been made over the years about the Ninth Circuit's "reversal rate," the percentage of the cases granted certiorari in which the court is reversed. I have never considered that much of an indicator as to whether a particular court is in or out of the mainstream, because the cases granted certiorari are not a representative sample and because the numbers are often too small for many circuits for a rate statistic to be meaningful. A relatively small circuit with only one case granted in a term can have a 100% reversal or 100% affirmance rate, depending on how that one case goes. Also, a 5-4 reversal means the question was close, and the case could reasonably have been decided either way.

More significant, to my mind, are the cases in which the high court reverses unanimously or summarily. If unanimous, not a single justice on a court with a broad spectrum of opinions thought the decision was right. If summary, the high court concluded that the decision was so obviously wrong as to not require full briefing and argument. A federal circuit court with an effective system of en banc review for wayward panel decisions should have very few of these. Something is seriously wrong at the Ninth.
1.18.2006 1:09pm
Defending the Indefensible:
I think Breyer makes a pretty strong point that peremptory challenges might best be done away with.
1.18.2006 1:12pm
Roger (mail):
Kent Scheidegger, I don't see your point. The unanimously First was reversed today as well. As was the 2d. So, in one day, the 1st, 2d, and 9th were all reversed without dissent. Indeed, with the exception of the right to die case, there has been little dissent this term! And, Gonzales v. Oregon, the 9th was upheld !!!!

I think that you are a political hack who didn't read any of the opinions, but still comments on them. (Not acceptable for a lawyer, or any American.)

The 9th's AEDPA issue is probably the closest in my mind, especially as the overall constitutionality of certain parts of AEDPA will probably come before the courts in the very near future.
1.18.2006 1:27pm
MikeC&F (mail) (www):
No one loves the Ninth Circuit like I do. But I have to agree that their AEDPA jurisprudence is out of whack. Yes, the AEDPA is unfair. And yes it's unconstitutional. But until the Ninth Circuit strikes it down in Irons v. Carey, the Ninth must properly apply it. ;^> (And when the Supreme Court reverses Irons v. Carey, the Ninth will just have to come up with another theory to strike it down under.)
1.18.2006 1:30pm
Nunzio (mail):
DTI,

I agree. But it's better for Congress to do this than the Supreme Court, or better yet, for a state to get rid of peremptories.
1.18.2006 1:51pm
Justin (mail):
While I agree with Justice Breyer's concurrance, it fails to go far enough. The Supreme Court should be honest that their line of opinions ending in this case effectively overrules Batson in regards to the AEDPA, and thus either the AEDPA is unconstitutional in this regards or the Batson rule must be revised to give it sufficient force to protect the underlying right.

Note: The Ninth Circuit *cannot* rule the AEDPA unconstitutional, because that is now the perogative of the Supreme Court. It can try to intepret it in ways that it finds constitutional, though that will always be in tension with existing precedent (hence why the issue is always coming up from the Ninth Circuit).
1.18.2006 1:56pm
NickM (mail) (www):
The beginning of a Term always produces a high percentage of unanimous opinions, because those are the cases which get decided quickly and with less time spent on the preparation of concurring or dissenting opinions.

Nick
1.18.2006 2:01pm
MikeC&F (mail) (www):
The Ninth Circuit *cannot* rule the AEDPA unconstitutional, because that is now the perogative of the Supreme Court.

Please explain...
1.18.2006 2:02pm
Kent Scheidegger (mail) (www):
Yes, Roger, there have been an unusual number of unanimous reversals, but my comment was based on long-term trends and not an individual case. In the abortion case, the Supreme Court noted rather sheepishly that it had done the same thing itself, possibly misleading the lower courts on this point.

You can hurl perjoratives all you like, subject to the discretion of our hosts. (See the notes at the bottom of the comment section.) Your assertion that I didn't read any of the opinions before commenting, however, is factually false.

Regarding the constitutionality of the AEDPA deference standard, I think that argument was implicitly rejected in Williams v. Taylor, when the majority ignored Justice Stevens' "constitutional doubt" argument and construed the statute to have the meaning that supposedly raised such doubts. It was disappointing, though, that the opinion did not address the issue head-on. The Court will probably have to do so eventually, though it may be nothing more than a footnote indicating that they did reject the argument in Williams.
1.18.2006 2:45pm
Justin (mail):
Whether implicitly or explicitly, the Supreme Court has answered the question of the AEDPA in no uncertain terms. The Ninth Circuit cannot rule contrary to the Supreme Court's clear indication. They cannot do so even if they believe that time or events has shifted the SCOTUS's view, and must thus wait for the Supreme Court to explicitly do so themselves.
1.18.2006 3:00pm
Roger (mail):
Well, if you say something is "implicitly rejected" then the issue is not at all clear. Indeed, it may well be that a new court sees Art. III's "all cases" clause a bit differently.

The problem with your 9th Circuit argument is that your proof that something was "wrong" with the 9th circuit is that it was reversed (9-0) on a day that there were many similar reversals of other courts. Then, you switch gears and claim that your comment was based on "long term trends" which you don't really explain what you mean.

But, okay, I will give you the benefit of the doubt. There are long term trends that you have some reliable knowledge of which say that the 9th is deciding cases wrong. But you also engage in some qualitative analysis of the reversal of the 1st circuit. Did you engage in this kind of qualitative analysis with every reversal of every case in your study? Or, did you just read somewhere that the 9th circuit has a "high" reversal rate. (Of course, any "reversal" rate is based on the number of cert. grants, and cert. grants, in my view are largely based on the ability of the lower court to frame issues in a way that begs for cert.) I am curious as to what kind of analysis you performed on each case that you brought into your study.

Did you include Booker remands? Those were all summary reversals! There were quite a few of them. Or did you exclude them from your study because there were too many from all over the country, and they took too long.

I still think that you are a political hack. Personally, because I think that Padilla was decided wrong that the 4th Circuit should be split. Also, the Federal Circuit should be split, because it would be funny.
1.18.2006 3:01pm
Justin (mail):
Roger, all I meant to do was provide evidence to the point I made above that the 9th Circuit no longer had the discretion to rule the AEDPA facially unconstitutional. I personally believe that the AEDPA *is* facially unconstitutional, but sadly I have not been nominated by the President nor confirmed by the Senate.
1.18.2006 3:06pm
keith_hilzendeger:
For those of you playing along at home, the State of California filed for cert. in Musladin on December 15. The case is No. 05-785.

I don't understand why we should focus on Musladin as an example of how the Ninth Circuit's AEDPA jurisprudence has gone astray. It's not as if the court has entirely dispensed with AEDPA's "clearly established federal law, as determined by the Supreme Court" requirement. As applied to the facts presented by Musladin, the question is not so much that the law isn't clearly established -- it is -- but whether the way the state courts applied that clearly established law to a set of facts materially different from those that generated the clearly established law in a reasonable way. Reasonable minds can certainly disagree how to apply the AEDPA standard of review in this situation. Let's not squander a legitimate debate about the meaning of the law by picking on the supposed (okay, openly acknowledged) bias of one of the participants in that debate.
1.18.2006 3:25pm
chris (mail):
Roger,

The instructions regarding comments below read, in part, "Here's a tip: Reread your post, and think of what people would think if you said this over dinner. If you think people would view you as a crank, a blowhard, or as someone who vastly overdoes it on the hyperbole, rewrite your post before hitting enter." Is this so difficult to understand or follow?
1.18.2006 3:38pm
Roger (mail):
Chris, I don't get your point. Someone in here claimed that the 9th Circuit had an abnormally high reversal rate. (I did not ask what a "normal" reversal rate should be.) Based on his comments, it seems that he doesn't really read cases (like a good Americans should) but relies on media sources and recites slogans. As I said, I doubted that he actually read all the cases from the Supreme Court because the Supreme Court had reversed several circuits today, and recently affirmed the ninth circuit, but he claimed that the ninth circuit had a high reversal rate. He denied it. I asked for details on his "tend" analysis, and how he accounted for Booker. If you disagree with me, you should explain why you disagree with me, rather than insulting me.
1.18.2006 3:53pm
Kent Scheidegger (mail) (www):
Speaking of actually reading, Roger, you might go back and actually read my initial comment, where I said that the Ninth Circuit's much-discussed reversal rate was not as probative as is often claimed.

When the Supreme Court makes a major change in the law, it very often vacates and remands a large number of cases for reconsideration in light of the change. No, I don't count these as summary reversals.

For your umbrage that Chris insulted you, in the midst of a thread where you called me a "political hack" twice, I hereby nominate you for the Owl Club Award. It was the funniest thing I've read all day. Thanks.
1.18.2006 4:05pm
Greedy Clerk (mail):
Roger, it is a fact that the Ninth Circuit often runs unreasonably afoul of AEDPA -- they just do, and it is quite common. About a month after I started clerking on the 9th in the late summer of 2002, two unaminimous, summary reversals came down the same day right at the beginning of the USSC's term. This was seen as a message to the Ninth to start respecting the Supreme Court's interpretation of AEDPA -- and note that the four "liberal" Justices who disagreed with the Supreme Court's interpretation of AEDPA in Williams v. Taylor all joined in those opinions, one of which reinstated a death penalty, without comment, not even a "Justice" Thomas-esque "I agree only because of precedent" concurrence (i.e., the so-called "liberal" Justices are the ones who actually respect precedent and try to create some consistency for the lower courts).

The Ninth didn't get the message, and has since been unanimously, and often summarily, reversed about five times since in AEDPA cases. I have personal knowledge of the Rice case so I won't comment on it specifically, but suffice it to say that I think the Ninth Circuit has willfully violated the Supreme Court's interpretation of AEDPA countless times, with only a tiny fraction seeing Supreme Court review.

What is even more ironic is that most often the Ninth pays no respect to the Courts of California, who are very competent and much more respective of individual rights than, say, their counterparts in the South. Thus, the Ninth Circuit's willful violation of AEDPA has had the effect of causing the Supremes to push AEDPA to be even more lax, and thus the Circuits in the South (4, 5, and 11) essentially do not even review the habeas cases they see. So, the 9th is indirectly responsible for the shoddy review of state court cases seen in the Fourth and Fifth Circuits for example.

As to arguments re the unconstitutionality of AEDPA, Justin is incorrect -- the Supremes have never addressed the issue explicitly and thus the NInth is free to rule it unconstitutional (though the Ninth has specifically addressed the issue before; thus if Reinhardt does something in Irons v. Carey, he will have to be very creative in disregarding 9th Circuit precedent. I predict an en banc vote in Irons by the way -- Reinhardt will ask the en banc court to address the issue given the precedent to which I refer). Justin's argument, although it has some superficial appeal, re "impliedly" upholding AEDPA is not the law -- the Supremes for example torpedoed the Sentencing Guidelines on 6th Amendment grounds despite 15 years of upholding it in different contexts, and it did not overrule any case in doing so.

I, for one, also do not believe that AEDPA is unconstitutional -- rather, I believe it strikes the appropriate balance. If we are going to have state courts, and those state courts are reviewed directly by the Supremes on direct appeal, I just cannot see why the federal courts should have a de novo review of the state courts. It just seems odd that a district court can review a California Supreme Court decision de novo. I think the "unreasonable application" standard is correct, and does not take away a Court's Article III powers. In other contexts, we have no problem with a law mandating the Standard of Review -- in administrative contexts, this is quite common. Moreover, if the argument won the day, then Congress would just jurisdiction strip federal habeas review, and we would only have direct review by the Supreme Court -- certainly not a good result.
1.18.2006 4:23pm
Mylar Thompson (mail):
The reason for the unanimous opinions are twofold:

1. The Justices don't want O'Connor to be the swing-vote on any contentious cases before she leaves, so the contentious cases have been backloaded in the term so that Alito will hear and vote on them instead.

2. CJ Roberts promised to produce more unanimous decisions (and fewere concurrences and dissents) and to change the way discussion was done in the conference. Word is that he has. Thus you get all these narrow, unanimous decisions. They aren't unanimous because everyone agrees on the deep principles underlying the case; they're unanimous because they are decided on a narrow basis upon which everyone can agree. This is how Roberts runs his court; it is what he said he would do.
1.18.2006 4:26pm
Roger (mail):
Greedy Clerk, I am unsure whether courts should take "signals" from appellate courts or simply rely on what is written. Sure, it is nice to see look at a court of appeals as "signaling" things, but that doesn't provide much guidance to litigants who want to argue something besides some sort of "read the tealeaves" argument to the court.

It is too bad that the 4, 5th, and 11th circuit do not actually rule on any habeas issues to come before them, instead simply affirming the decisions of the District Court.
1.18.2006 4:35pm
Mr. Mandias (mail) (www):

Whether implicitly or explicitly, the Supreme Court has answered the question of the AEDPA in no uncertain terms. The Ninth Circuit cannot rule contrary to the Supreme Court's clear indication.


Yeah? Just watch them.
1.18.2006 6:07pm
Mr. Mandias (mail) (www):
By the way, I think Greedy Clerk gets it all exactly right.
1.18.2006 6:12pm
rob (mail):
the ninth circuit's record this year is 2-6-1 (the tie being an affirmance-in-part/reversal-in-part); 0-5 on habeas.
1.18.2006 6:29pm
KMAJ (mail):
This is a dated breakdown of Supreme Court cases from the terms that ended in October of 2002 and 2003 by Center for Individual Freedom Foundation. Their comprehensive findings seem to support criticisms of the 9th Ciruit:

(excerpt)
Of the 80 cases the Supreme Court decided this past term through opinions, 56 cases arose from the federal appellate courts, three from the federal district courts, and 21 from the state courts. The court reversed or vacated the judgment of the lower court in 59 of these cases. Specifically, the justices overturned 40 of the 56 judgments arising from the federal appellate courts (or 71%), two of the three judgments coming from the federal district courts (or 67%), and 17 of the 21 judgments issued by state courts (or 81%).

Notably, the 9th Circuit accounted for both 30 percent of the cases (24 of 80) and 30 percent of the reversals (18 of 59) the Supreme Court decided by full written opinions this term. In addition, the 9th Circuit was responsible for more than a third (35%, or 8 of 23) of the High Court's unanimous reversals that were issued by published opinions. Thus, on the whole, the 9th Circuit's rulings accounted for more reversals this past term than all the state courts across the country combined and represented nearly half of the overturned judgments (45%) of the federal appellate courts.

The federal courts of appeal decide roughly 30,000 cases per year, as reported in statistics compiled by the Administrative Office of the U.S. Courts. Of these, the 9th Circuit decides roughly 17%, making it by far the busiest and largest appellate court. But even more surprising than the frequency and number of cases before the 9th Circuit is the frequency with which the U.S. Supreme Court reviews decisions issued by that particular federal appellate court.

Many legal experts attribute the High Court's frequent review of 9th Circuit decisions to that court's staggering size — with a full complement of 28 judges, the 9th Circuit has more judges than any other federal appellate court and exercises jurisdiction over California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern Mariana Islands. But if the 9th Circuit's gigantic caseload is to explain away its record in the U.S. Supreme Court, then the frequency of review and reversal should at least correspond to its size and the percentage of federal appellate cases it hears. Unfortunately, this is not the case.

Although the 9th Circuit's caseload comprised approximately 17% of the federal appellate cases terminated in the year ending March 31, 2002, its decisions accounted for close to half (43%) of all the federal appellate decisions reviewed by the Supreme Court this past term. Comparatively, the 5th Circuit decided nearly 14% of federal appeals cases, but accounted for only 5.4% of the Supreme Court's docket.
The third largest federal appeals court, the 11th Circuit, accounted for nearly 13% of federal appellate caseload, but only 7.1% of the cases decided by the Supreme Court originated there.

This means that, on average, a case from the U.S. Court of Appeals for the 9th Circuit was more than twice as likely to be reviewed and produce a written decision by the U.S. Supreme Court than was a case from the other federal appeals courts. By contrast, a case from the second busiest circuit, the 5th, was nearly a third less likely to be reviewed and decided by the High Court than the average federal appellate case.


It is true that the overall reversal rate of the 9th Circuit (75%) was lower than that of other federal appellate courts — most notably the 4th, 5th, 8th and 10th Circuits, which were all reversed 100% of the time this past term. Yet these "complete" reversal rates are likely due to much less frequent review of those circuits by the U.S. Supreme Court. Specifically, the High Court decided only eight cases from the 4th, 5th, 8th and 10th Circuits combined (three from the 4th, three from the 5th, one from the 8th, and one from the 10th), compared with the 24 cases the Supreme Court took up from the 9th. Thus, the 9th Circuit's lower overall reversal rate does not demonstrate the justices' greater agreement with the decisions of the 9th Circuit, but is likely attributable to that circuit's much higher review rate. Such a conclusion is only reinforced by the fact that the more than half (57%, or 8 of 14) of the federal appellate decisions the Supreme Court unanimously overturned came from the 9th Circuit. This means that a full one-third (8 of 24) of the 9th Circuit cases decided by the High Court were unanimously overturned.


Their 2003 Review produced similar results:

(excerpts)
Of the 79 cases the Supreme Court decided this past term through published opinions, 68 arose from the federal appellate courts, two from the federal district courts, and nine from state courts. The court reversed or vacated the judgment of the lower court in 59 of these cases. Specifically, the justices overturned 54 of the 68 judgments arising from the federal appellate courts (or 79%), zero of the two judgments coming from the federal district courts (or 0%), and six of the nine judgments issued originally by state courts (or 67%).

Notably, 9th Circuit rulings constituted about 32 percent of both the cases (25 of 79) and the reversals (19 of 59) the Supreme Court decided by written slip opinions this term.

In addition, the 9th Circuit was responsible for nearly half (43%, or 10 of 23) of the High Court's unanimous reversals that were issued through published opinions. Thus, on the whole, 9th Circuit rulings accounted for three times more reversals this past term than all the state courts across the country combined and represented more than a third of the overturned judgments (36%) of the federal appellate courts.

--

Although the 9th Circuit's caseload comprised approximately 19 percent of the federal appellate cases terminated on the merits in the year ending September 30, 2003, its decisions accounted for more than a third (37%) of all the federal appellate decisions reviewed by the Supreme Court that produced written opinions this past term. Comparatively, the 5th Circuit decided nearly 16 percent of federal appeals cases, but accounted for only 9 percent of the Supreme Court's docket that came from the federal appellate courts. The third largest federal appeals court, the 11th Circuit, accounted for nearly 11 percent of federal appellate caseload, but only 6 percent of the federal appellate cases reviewed by the Supreme Court originated there. In fact, even the second most-frequently reviewed and reversed federal appellate court this term, the 6th Circuit, accounted for only 12 percent of the Supreme Court's federal appellate docket while making up just 8 percent of the total federal appellate caseload nationwide.

--

Such a conclusion is reinforced by the fact that nearly half (48%, or 10 of 21) of the federal appellate decisions the Supreme Court unanimously overturned came from the 9th Circuit. This means that a full 40% (10 of 25) of the 9th Circuit cases decided by the High Court were unanimously reversed. In fact, more than half of the High Court's reversals of the 9th Circuit were unanimous this past term (53%, or 10 of 19), the highest percentage of any federal appeals court.


They also did an expanded study to include 2000 and 2001 SCOTUS records and the results were similar and led to this conclusion:

Conclusion

It is clear from this statistical and qualitative analysis that the U.S. Court of Appeals for the Ninth Circuit has wandered far from the judicial mainstream. It is also clear that specific judges are primarily responsible for the Ninth Circuit's frequent reversals and biting Supreme Court reprimands. But these conclusions should not come as a shock. For years, Court watchers and legal academics have been aware of the Ninth Circuit's disfavor at the Supreme Court. Even liberal U.S. Senator Charles Schumer (D-NY) once noted that the Ninth Circuit's jurisprudence is "way out of the mainstream on the left."

Nevertheless, these continuing negative trends in the Ninth Circuit are indicative of a greater problem. Specifically, in pursuing political and policy preferences at the expense of established precedent and textual commands, some Ninth Circuit judges seem to invite review and reversal by the U.S. Supreme Court. In so doing, these judges — and, through their majority opinions, the Ninth Circuit, itself — have exceeded the boundaries of their authority as inferior federal court judges, who are bound to faithfully follow the law and apply Supreme Court precedent without personal interest or prejudice. That is the primary reason for the extraordinary reversal rate and remarkable unanimity of those reversals that this study has demonstrated.

As a result, until there is a significant change in the make-up or the judicial philosophy embraced by its members, it is likely that the Ninth Circuit will continue to retain the dubious distinction of being the most reversed court in the nation.



Did this trend continue after 2003 ? If it did, there is a valid argument to the assertion something is wrong in the 9th Circuit.
1.18.2006 6:52pm
anon) (mail):
I have to admit that I had a summer job smearing the courts like that article above does, without providing much details. However, I wonder why there were no calls to split the 4th Circuit after its holding in Padilla?
1.18.2006 7:37pm
grackel (mail):
Interesting discussion. Too bad the actual roles of the 9th circuit and the supreme court are not reversed. One might note the probability that the 9th circuit quite faithfully represents the population of its actual geographic area, which implies something too subtle for me to take any further than to note that these issues which show the differences between the 9th circuit and the supreme court, may return in the future with different results.
1.18.2006 9:43pm
KMAJ (mail):
anon),

Ad hominem against the article is a weak rebuttal. The articles reviewed all the cases reviewed and those overturned by the Supreme Court and broke them down by percentages. Can you provide any factual rebuttal to the information presented ? Can you show any error in their figures ? Do you have any factual reason for the why their percentage of cases reviewed is double their total percetage of cases (37% - 19% in 2003) ? Their percentage of cases unanimously overturned was two and a half times their total percentage of cases (48% - 19% in 2003) ? In 2002 the figures were not much different, they handled 17% of all appellate cases but were responsible for 45% of the appellate decisions overturned and 35% of ALL unanimous reversals. I would be interested in any factual presentation you might have to offer, but the figures speak for themselves. Were it just one year, it could be attributed to an anomaly, but it is consistent.
1.19.2006 12:47am
Christopher M. (mail):
Greedy Clerk is indeed right (as usual), with two possible exceptions:

1) I'm not familiar with the Ninth Circuit precedent G.C. cites as directly upholding AEDPA. But unless it is directly on point, and the arguments made were precisely the arguments Judge Reinhardt would like to make in Irons, I doubt that "Reinhardt will ask the en banc court to address the issue" instead of just addressing it himself (assuming he can get Judge Noonan to sign on). While Reinhardt generally does respect on-all-fours precedent--see Watkins v. U.S. Army, 847 F.2d 1329, 1358 (9th Cir.1988), as well as the post-Lockyer three-strikes cases in which Pregerson dissented in defiance of the Supreme Court, and Reinhardt concurred--no one has ever accused him of failing to distinguish a distinguishable case that he believes unjust.

2) In his praise of AEDPA's deferential standard, Greedy Clerk omits one odd aspect of AEDPA: the rule that federal courts can issue the writ only if the state court judgment violated binding Supreme Court precedent, as opposed to mere circuit precedent (or even mere "federal law"). I have no view on whether this is constitutional, but it's certainly arbitrary (given the Supreme Court's highly selective certiorari docket), and I've never heard any reasonable justification for it.
1.19.2006 1:32am
M. Simon (mail) (www):
KMAJ,

There are a couple of possibilities. Statistical variation is one.

Another is that the 9th is where the President sticks liberals and libertarians (and many of its rulings stem from a libertarian sensibility) he gets stuck with.

I think Janice Brown fits into the libertarian mold.

Where did Thomas come from?
1.19.2006 2:43am
M. Simon (mail) (www):
Thomas came from Missouri.

He served in DC Court of Appeals before he got to the SC.
1.19.2006 2:49am
Kent Scheidegger (mail) (www):
Christopher, the United States Supreme Court is a "higher" court than the Supreme Court of California in the sense that it has direct appellate jurisdiction, as distinguished from collateral attacks on judgments. A U.S. Supreme Court precedent is binding precedent in a state court, while a federal circuit opinion has only its persuasive value, just like an opinion from another state. The Supreme Court noted this in the Arizona official English case.

If the Ninth Circuit has one view of a federal question and all the other circuits have another view, shouldn't the California Supreme Court be able to go along with the almost-unanimous view? If the Ninth can nullify the judgment of Cal. Supreme for refusal to follow its idiosyncratic view, then it is exercising de facto the appellate power over state courts that Congress has never given to any federal court but the Supreme.

The change to a deferential standard was, according to its chief sponsor, Senator Hatch, based on a rejection of the premise that the federal circuit court's opinion of federal law is necessarily better than the state supreme court's. The Ninth had a lot to do with that. As perceptively noted earlier in this thread, the Ninth's off-the-wall rulings for prisoners within its jurisdiction are badly hurting prisoners in other circuits, who may actually have meritorious claims, by prompting restrictive legislation.
1.19.2006 10:47am
Christopher M (mail):
Kent:

If the Ninth Circuit has one view of a federal question and all the other circuits have another view, shouldn't the California Supreme Court be able to go along with the almost-unanimous view?

Yes, it should. You misunderstand me: I agree that habeas review should be deferential. That's what the "unreasonable application of" language in AEDPA is for. What I don't understand is why the universe of federal law applicable on habeas should be restricted to the holdings (not even the dicta!) of the Supreme Court, when there are so many issues that the Supreme Court simply does not address.
1.19.2006 11:33am
keith_hilzendeger:
Congress cannot, as Greedy Clerk suggests, "just jurisdiction strip federal habeas review," because that would violate the Suspension Clause. And if we were writing on a clean slate, I would agree with her that AEDPA's "contrary to, or... unreasonable application of, clearly established federal law" limitation on habeas relief strikes the appropriate balance. But AEDPA was clearly meant to close the throttle; as the Court constantly reminds us (and clarified for the Ninth Circuit in those two cases she alluded to earlier), an unreasonable interpretation of federal law is different from an incorrect one. At the very least, AEDPA reduces the ability of federal courts of appeals to police the enforcement of federal constitutional provisions in the states over which they have jurisdiction. For those who feel that this abdicates too much power, there is much reason to attack AEDPA.
1.19.2006 2:06pm
Kent Scheidegger (mail) (www):
What I don't understand is why the universe of federal law applicable on habeas should be restricted to the holdings (not even the dicta!) of the Supreme Court, when there are so many issues that the Supreme Court simply does not address.

Chris, that requires a little background. Remember we are only talking about federal court review of state criminal cases. That means, as a practical matter, we are only talking about constitutional claims. Federal statutory issues are rare, and until this Vienna Convention business treaty claims were extremely rare.

Are there really many federal constitutional limitations on state criminal trials that the Supreme Court does not address? Claims based on the Bill of Rights as originally understood are not common. The vast majority of claims, in my experience, are based on a Supreme Court extrapolation from the Bill of Rights, nearly always a rule created after 1960.

Precedents from other courts are not irrelevant. Reversing my hypothetical from the previous post, a near unanimity that a Supreme Court precedent requires a certain result in a common fact-pattern would be a strong indication that an outlier decision to the contrary is an unreasonable application of that precedent. However, where the question is close and the courts are divided, the decision of the court of primary jurisdiction stands. Habeas is "secondary and limited," as the Supreme Court said long before AEDPA, and not for the purpose of shopping a dubious argument before multiple sets of judges in a "head I win; tails we take it over" form of review.
1.19.2006 8:35pm