Two years ago, the Ninth Circuit panel of Judges Reinhardt, Noonan, and Fernandez created quite a stir when they strongly hinted that they were going to strike down 28 U.S.C. 2254(d)(1) of AEDPA, the 1996 statute that limits the power of federal courts to provide habeas relied for state prisoners. Under this statute, federal courts can grant habeas relief only when state courts really messed up; if the legality of the state court processes was a close call, the federal courts cannot intervene.
The Ninth Circuit and the Supreme Court have been playing a bit of a cat and mouse game over the last few years with this particular statute. A number of Ninth Circuit judges (Reinhardt included, of course) opted to ignore it or minimize it to see if the Supreme Court would notice; the Supreme Court noticed, and reversed the Ninth Circuit (and Reinhardt in particular) in a string of cases.
The interesting question was whether Reinhardt and Noonan were going to take things up a notch and strike down the statute outright, effectively forcing the Supreme Court to add a case to its docket and respond to their view that AEDPA interferes too much with the judicial function.
Today the panel finally handed down its opinion, Irons v. Carey. Somewhat to my surprise, the panel opted against that course. The judges filed a short unanimous opinion resolving the case and noting that Ninth Circuit precedent upheld the constitutionality of the provision years ago. (The judges were therefore bound by the earlier panel, although in the Ninth Circuit such rules are followed somewhat sporadically.) Next, Judges Noonan and Reinhardt made their arguments that the statute should be deemed unconstitutional in non-controlling concurrences rather than in the majority opinion. Judge Noonan wrote the main concurrence; Judge Reinhardt wrote a short concurrence agreeing with Noonan’s concurrence; and Judge Fernandez wrote a short concurrence disagreeing with the other concurrences and noting that none of the concurrences were binding.
Hat tip: How Appealing.