Comments on: Is AEDPA unconstitutional?

By: The Volokh Conspiracy

The Volokh Conspiracy — Fri, 02 Dec 2005 05:10:59 +0000

Is 2254(d)(1) of AEDPA Unconstitutional?:

Judge Merritt thinks so, see his dissent today (starting at page 14), in an opinion that Judge Reinhardt can pop into what I assume will be his forthcoming opinion in

By: Hummer H1

Hummer H1 — Fri, 26 Aug 2005 00:45:47 +0000

Hummer H1

The Hummer H1

By: 2005 Chrysler Pacifica Review

2005 Chrysler Pacifica Review — Wed, 17 Aug 2005 05:55:40 +0000

2005 Chrysler Pacifica Review

The all-wheel-drive system works transparently and helps the Pacifica sail through corners like a sports sedan, rain or shine.

By: 2005 Buick Park Avenue Review

2005 Buick Park Avenue Review — Mon, 15 Aug 2005 22:13:54 +0000

2005 Buick Park Avenue Review

The four-door 2005 Buick Park Avenue sedan is long and elegant, and both models offer a generous range of standard amenities.

By: 2005 Ford Focus Review

2005 Ford Focus Review — Sun, 07 Aug 2005 10:48:40 +0000

2005 Ford Focus Review

For the 2005 model year, the Focus received a minor styling makeover, inside and out, giving it a slightly more subdued, mature look.

By: 2005 Porsche Cayenne Review

2005 Porsche Cayenne Review — Fri, 05 Aug 2005 12:07:56 +0000

2005 Porsche Cayenne Review

Cayennes have all-wheel drive with low-range gearing and locking center differential.

By: Anonymous Clerk

Anonymous Clerk — Wed, 11 May 2005 20:05:40 +0000

A decent (though short) review of oral arguments in this case can be found at Appellate Law & Policy, at: http://appellate.typepad.com/appellate/2005/05/oral_argument_i_1.html

By: ohwilleke

ohwilleke — Mon, 09 May 2005 16:55:30 +0000

The Supreme Court could certainly construe AEDPA to avoid the constitutional issue if it wished. All it would have to do is allow the federal courts to consider opinions of the lower courts as persausive, but not binding, authority regarding what prior U.S. Supreme Court cases implied. The lower courts could then cite the relevant U.S. Supreme Court decisions as the ultimate sources of their decisions. After all, there is no issue in criminal justice that the U.S. Supreme Court hasn’t touched upon sufficient to leave some implications.

Then, the fight is formally over how much one is willing to imply from the Supreme Court’s rulings, which is one of judicial interpretation, rather than over whose decisions one can consider.

By: NPV

NPV — Fri, 06 May 2005 19:35:56 +0000

I wonder if Reinhardt got the idea from the proposals that the courts should be precluded from relying on international law in the wake of Kennedy’s opinion in the juvenile capital punishment case. The Supremes might not want to jump too quickly here.

By: BDG

BDG — Fri, 06 May 2005 14:29:21 +0000

The fact that Noonan — a conservative Reagan appointee — joined the order might not be as surprising as it seems at first blush. In his book, Narrowing the Nations Power: The Supreme Court Sides with the Sates, Noonan spends considerable time attacking the Supreme Court’s decision in City of Boerne v. Flores, which he views as the hallmark of judicial overreaching into the province of the Congress. Now (I’m guessing), he seems to be saying, “Fine, if Boerne is going to exist, let’s carry out this awful precedent to its logical conclusion.” In a way, this is similar to what the original 9th Circuit panel did in Southwest Voter Registration Education Project v. Shelley, where the court tried to use Bush v. Gore to halt the California recall election (”Fun with Bush v. Gore: The 9th Circuit Moons the Supreme Court,” was Dahlia Lithwick’s well-worded headline). Time will tell whether Noonan is doing the same here. As he states in his book, “The real battle begun by Boerne was to continue. Were the new requirements for legislation ad hoc defenses set up by the Supreme Court to rebuff RFRA or would they be norms governing the future? Boerne raised this question without resolving it.” Looks like Noonan might take this opportunity to do just that.

By: Law Dork

Law Dork — Fri, 06 May 2005 01:05:55 +0000

Solomon Challenge & Other Appellate News

Although I plan on spending some serious time writing about Rumsfeld v. FAIR in the near future, I don’t really have the time right now. I did, however, want to point readers to Prof. Marci Hamilton’s lengthy commentary published today…

By: How Appealing

How Appealing — Fri, 06 May 2005 00:49:30 +0000

http://legalaffairs.org/howappealing/050505.html#002522

“Is AEDPA unconstitutional?” Online at “SCOTUSblog,” Lyle Denniston has this very interesting post providing additional details behind the order that I first posted online and mentioned here this morning….

By: Kent Scheidegger

Kent Scheidegger — Thu, 05 May 2005 23:43:03 +0000

To read more than anyone could possibly want to know on the constitutional argument, see Liebman & Ryan, “Some Effectual Power”: The Quantity and Quality of Decisionmaking That Article III and the Supremacy Clause Demand of the Federal Courts, 98 Colum. L. Rev. 696 (1998) and my response, Scheidegger, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888 (1998). See also Fallon, Meltzer & Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 1350 (5th ed. 2003).

IMHO, the Supreme Court has already decided this issue. Although they denied cert. on the constitutional question in Williams v. Taylor, 529 U.S. 362 (2000), petitioner got it in anyway under the banner of constitutional doubt, Justice Stevens’ opinion alluded to it, and the majority implicitly rejected it by interpreting the statute in the supposedly unconstitutional way anyway.