OK, so then that implied rejection would be “clearly established” federal law that District Courts could properly rely on under the actual explicit holding of Williams, which limits them to applying clearly established SCOTUS law in the area?

A bit circular, no? What is the effect of dicta appearing to respond to a declined cert question in an opinion that limits lower courts from responding to dicta generally? The Ninth Circuit gets reversed for relying on implications in SCOTUS habeus opinions all the time.

But of course, if Reinhart would just step into line with the Court and limit rights based on anticipated or implied SCOTUS positions then they would stop reversing him, right?

Federal law does, of course, take precedence over state law. But it does not follow, as you seem to suggest, that federal courts take precedence over state courts. The latter are just as capable as the former in adjudicating issues of federal law. Once a criminal conviction has been upheld in the state courts (with the possibility of review in the U.S. Supreme Court), it is no more an affront to federal courts’ habeas powers to limit their authority to overturn that conviction than it is to limit their authority to overturn a fully-appealed federal court conviction.

Of course there’s a right to relitigate an issue de novo, that’s the theory of dual sovereignty. I can indict and try you for drug possession in state court and then turn around and do it again in federal court.

Habeas corpus is not an exception to full faith and credit. It is an inherent power of the judicial branch, which Congress cannot limit under the Suspension Clause, and which the Executive can ignore only by failing to see that the laws are truly executed. If Congress repealed every jurisdictional enactment, habeas jurisdiction would still exist, just like the power to try suits between states.

By reposing the power to hear habeas corpus in the district courts, Congress provided an alternative path for obtaining federal review of federal claims. Could Congress apply the AEDPA rules of decision to cases before the Supreme Court on cert to a state surpreme court? Probably, but only at the cost of seeing the Supreme Court issue original habeas writs directed at state custodians. Could Congress apply the AEDPA rules of decision to original habeas? No way. Federal habeas corpus is an instrument of the supremacy clause for protecting federal rights.

Roger Friedman

Here, in contrast, limiting relief, inter alia, limits the federal judiciary’s power to effectuate decisions.

As the Supreme Court in Gordon v. United States explained,

“The award of execution is . . . an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this Court, in the exercise of its appellate jurisdiction; yet it is the whole power that the Court is allowed to exercise . . .” 69 U.S. 561, 561 (1864).

Thus, the function of the judiciary is to determine not only the meaning of the law, but to apply the law to decide disputes which come before it: “[T]he Framers crafted . . . [Article III] with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them.” Plaut v. Spendthrift Farm, 514 U.S. 211, 218-219 (1995). “If the essential, constitutional role of the judiciary is to be maintained, there must be both the appearance and the reality of control by Article III judges over the interpretation, declaration, and application of federal law.” Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F.2d 537, 544 (9th Cir. 1984) (citing Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76-81 (1982)).

Allowing Article III courts to determine whether or not there has been a violation of federal law, but precluding a remedy when state court decisions are not objectively unreasonable, precludes the judicial power of Article III courts from having any effect. Furthermore, allowing incorrect state determinations of federal law denies the effect of U.S. Supreme Court precedent, promotes non-uniform law, and eviscerates the essential function of Article III courts to maintain federal law’s supremacy.

—AVB

Regarding Judge Easterbrook’s opinion in Lindh (reversed on other grounds by the Supreme Court), the very next sentence after the one Andrew quotes rejects the Article III argument.

Regulating relief is a far cry from limiting the interpretive power of the courts, however, and Congress has ample power to adjust the circumstances under which the remedy of the writ of habeas corpus is deployed.

AEDPA’s limitation on the source of applicable law to “clearly established Federal law, as determined by the Supreme Court of the U.S.” unconstitutionally denies circuit court precedent of its stare decisis effect. Accordingly, AEDPA’s mandate is an impermissible intrusion by the legislature into the judicial function and violates the doctrine of separation of powers. See, Klein; INS v. Chadha.

Both before and continuing after AEDPA’s enactment, Congress fully vested “[t]he Supreme Court, a Justice thereof, a circuit judge, or a district court” with the power to entertain petitions for writs of habeas corpus.

While Congress may have the power to grant jurisdiction, this power does not include saying what the law is. Furthermore, Congress may not limit the courts to say, independently, what the law is.

As every law student has learned, Marbury v. Madison recognized that the federal judiciary is supreme in its exposition of the Law and that this duty arises from courts’ constitutionally imposed obligation to adjudicate cases within their jurisdiction, first, by determining the law’s meaning, and second, by applying that law to decide cases: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” Marbury; accord Cooper v. Aaron.

If AEDPA’s mandate were unquestioningly followed by the courts, it would prevent the judiciary from accomplishing its constitutionally assigned functions. As the ninth circuit pointed out in Pacemaker Diagnostic v. Instromedix (citing Nixon v. Administrator of General Services), “[t]he standard for determining whether there is an improper interference with . . . the independent power of a branch is whether the alteration prevents or substantially impairs performance by the branch of its essential role in the constitutional system. 725 F.2d 537, 544 (9th Cir. 1984) (citing Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977)).

Article III makes clear that, once ordained, the inferior federal courts shall share the judicial power with the U.S. Supreme Court: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Although Congress may have the authority to create and abolish inferior courts and to regulate their jurisdiction, Congress cannot prescribe the judiciary’s decision-making process as to the law’s meaning. See Wright v. West, 505 U.S. 277, 305 (1992) (O’Connor, J., concurring) (“We have always held that federal courts, even on habeas, have an independent obligation to say what the law is.”). To the contrary, it is solely within the province of the Supreme Court to regulate inferior federal courts’ jurisprudence using stare decisis.

The Supreme Court’s recognition of stare decisis as a

“basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon ‘an arbitrary discretion,’” Patterson v. McLean Credit Union, 491 U.S. 164, *172 (1989) (quoting The Federalist, No. 78 (A.Hamilton)),

captures the notion that it is constitutionally impermissible for Congress to encroach upon the judiciary’s role of determining the law’s meaning: “When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is. . . . [T]he Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary [Legislative] expectations must be disappointed.” Boerne v. Flores.

Congress cannot fully vest the inferior federal courts with jurisdiction on one hand and then attempt to proscribe the courts from considering cases under the whole body of law. It is unconstitutional for Congress to attempt to deprive the federal courts of appeal of their own jurisprudence and to limit the source of law upon which they may rely: “Once the judicial power is brought to bear by the presentation of a justiciable case or controversy within a statutory grant of jurisdiction, the federal courts’ independent interpretive authority cannot constitutionally be impaired.” Lindh v. Murphy, 96 F.3d 856, 872 (7th Cir. 1996).

To be clear, Congress cannot constitutionally negate, nor impair the precedential effect of federal circuit courts’ prior, independent interpretations. To do so is to impermissibly encroach on the judicial function. See e.g., Klein, 80 U.S. 128, 147 (1871) (ruling “Congress . . . passed the limit which separates the legislative from the judicial power” by forbidding the court from giving the effect to evidence which, in Courts’ own judgment, such evidence should have, instead directing the Court “to give it an effect precisely contrary,” to the Court’s prior precedent, thereby negating its stare decisis effect.).

—AVB