May 6, 2005

The constitutionality of the Antiterrorism and Effective Death Penalty Act.

SCOTUSblog notes (via How Appealing) that the Ninth Circuit is inquiring into the constitutionality of the changes to the habeas standard that were made back in 1996 as part of the Antiterrorism and Effective Death Penalty Act:
The 1996 law was expressly intended by Congress to sharply curtail the right of state prison inmates, under federal habeas, to challenge their state convictions and sentences. A key section of AEDPA bars a federal court from granting any habeas writ on an issue that was raised in state court, unless the state court decision “was contrary to, or involved an unreasonable application, of clearly established federal law, as determined by the Supreme Court of the United States.” (That is 28 U.S.C. 2254-d-1.)

The Ninth Circuit’s new order, issued Wednesday, raises the question whether that section “unconstitutionally prescribes the sources of law that the Judicial Branch must use in exercising its jurisdiction and whether under the separation of powers doctrine this court should decline to apply the AEDPA standards in this case.” By citing Marbury and City of Boerne on that issue, the Circuit Court was relying on two strong statements by the Supreme Court that Congress’ power to control how the courts carry out their judicial function is strictly limited by separation-of-powers principles.
Let me recommend the dissenting opinion of Judge Ripple in the 1997 Seventh Circuit case Lindh v. Murphy (which reached the Supreme Court, but not on this issue). Judge Ripple found a separation of powers violation in the AEDPA standard back then. I'd excerpt some of the opinion for you, but it's too ponderous for the general reader, and I can't find a pithy paragraph. The majority in this en banc case shot down the argument summarily. It's hard to believe a court at this late date would have much success coming back to this issue, which was very well known at the time the act was passed, but there may be something about the context of this new case that makes the argument especially appealing.


Nick said...

Granted I'm no legal expert by any means... but I still feel the need to make this comment.

I find it somewhat disturbing that the one branch of our government that is the farthest removed from the voter is the one that has over the years most been able to increase it's own power. From Marbury v. Madison onward, the courts have frequently been the ones to say what they can and can't do... or at least that's what it seems like to this humble reader.

I would think that a group that is not directly accountable to a voter should be the least able to increase it's own power.

Understandably this is a complex issue that can't be summed up by that one idea (there's judicial independence and so forth to account for also)... but like I said... I find it somewhat disturbing.

Ann Althouse said...

Nick: The courts also tens to constrain their exercise of power out of awareness of this problem. If they didn't, there would be even more complaints about them in the political arena than there are today.

Note that in the case of habeas, if the courts were to say AEDPA was unconstitutional in the way it pushes back federal power over state convictions, Congress could respond by abolishing federal habeas jurisdiction for state prisoners altogether. The separation of powers problem here is all about using the federal courts, but making them use their power in a way that isn't properly judicial. That problem is solved by taking the work away from them entirely.

But aside from that, the judicial power is justified precisely because of its dedication to legal principle as opposed to the will of the majority, and it's an important part of a democratic system to protect the rights of individuals and minorities.

JK said...

The NYT has an Op-Ed piece on this very issue of the courts authority. It's more of a history lesson, but interesting.

Ann Althouse said...

JK: Thanks, I was just reading that and thinking of writing. Stay tuned.

rafinlay said...

As regards the NYT op-ed, I have always thought the problem is the lack of definition in Article 3. The Supreme Court's relations to the other two branches are not defined. The judicial review power was created by the Supreme Court, itself. I could wish that it were possible to rewrite Article 3, defining a set of mutual checks & balances to prevent both a runaway court and a powerless court. Problem is, I don't believe any political body could write it without trying to manipulate it for short-term partisan gain.

Nick said...

rafinlay... that was actually the point I was trying to make. It wasn't that the courts aren't important (which seems to be what Ann though I meant), but rather that they decide their place in things. We do need a strong court to prevent the tyranny of the majority... yet only in a tyrannical government do those in power decide their own power. Chalk full of irony I say. Article 3 is indeed lacking... and yes... that NYT article was a very good history lesson.

Ann Althouse said...

Nick: I understood what you were saying, but I think you and Rafinlay are missing the political checks that are already there.