An analysis of AEDPA and court powers
on Apr 7, 2007 at 10:40 am
An ongoing conversation among judges, scholars and lawyers — and inside the Supreme Court — focuses on whether Congress went too far in 1996 in curbing the authority of federal courts to decide new issues in criminal habeas law. The Court most recently examined an aspect of this controversy in its decision in December in Carey v. Musladin (05-785) — a decision that largely attracted public notice because it involved the display of buttons by victim family members in the courtroom during a trial. But the Musladin decision left habeas law about where it found it.
A law student at the University of Cincinnati — Joseph M. Brunner, who is also managing editor of the school’s Law Review — has done a penetrating analysis of the role that precedent is now allowed to play in habeas cases in the wake of Congress’ passage of the Antiterrorism and Effective Death Penalty Act of 1996. His main conclusion is that the current interpretations and operations of AEDPA’s limits on the use of precedent “go beyond regulating relief and impermissibly interfere with the ability of an Article III court to exercise its judicial power.”
Brunner’s article was prompted by the Ninth Circuit Court’s recent exploration of AEDPA’s constitutionality. (The Ninth Circuit in March ended that exploration without definitively ruling on the constitutional question. That development was discussed by this blog in this post.)
The Cincinnati law student’s soundly researched and well argued article can be found here; it has been published at 75 U. Cin. L. Rev. 307. The article discusses Carey v. Musladin in the closing pages.
Since the article was prepared, the Court has decided Musladin. The blog invited Brunner to comment on that decision as an addition to his article. Here is his response:
“The Supreme Court decided Carey v. Musladin on December 11, 2006, three days
after this article was published. The case does little to address the issues the article raised, however. Justice Thomas’ brief, seven-page majority’s opinion just reinforces the strict definition of the “clearly established” requirement that has been around since Justice O’Connor’s opinion in Williams v. Taylor – i.e. it means the “holdings as opposed to the dicta,” and continues the Court’s rigid interpretation of the AEDPA standard. The majority based their entire analysis on the fact that no opinion from the Supreme Court had clearly established the principle Musladin based his habeas petition on, and thus found habeas relief inappropriate.
“Justice Stevens’ concurring opinion, however, is more interesting, because he suggests that Justice O’Connor’s “dictum about dicta” is “an incorrect interpretation of the statute’s text.” As I noted in my article, at oral argument Justice Stevens was particularly interested in the effect, if any, of the Court’s dicta on later cases that arise in the lower courts. Justice Stevens’ opinion seems to recognize the tough position AEDPA puts a district court in, and recommends allowing district courts to rely on Supreme Court dicta when determining reasonableness questions for AEDPA purposes. This is better than the current approach, but it still does not directly address the problems AEDPA creates for the district and circuit courts. Justice Stevens’ approach, on its face, still requires the district courts to make an independent determination of what the law is regarding a certain issue, presumably regardless of what the superior circuit court thinks of the issue. This presents all the original difficulties identified in the article.”
