Dissenting Opinion
dissenting from the denial of rehearing en banc:
I would hold that section 104 of the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
I.
Section 2254(d)(1) prescribes an unconstitutional standard of review for federal сourts’ adjudication of habeas petitions alleging that the petitioner’s state custody is “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). It provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court оf the United States;
§ 2254(d)(1).
The statute departs from pre-AEDPA habeas jurisprudence in two key ways. First, whereas previously federal courts could rely on the jurisprudence of the courts of appeals to determine whether the state court decision was in violation of federal law, after AEDPA they are limited to clearly established law “as determined by the Supreme Court.” Id.; see Williams v. Taylor,
II.
“[T]he doctrine of separation of powers ... is at the heart of our Constitution.” Buckley v. Valeo,
Over the course of our nation’s history, the Supreme Court has developed the contours of this “judicial power,” setting the boundaries between Congress and the judiciary essential to maintaining Article Ill’s “vital check against tyranny.” In Marburg v. Madison, the Court forcefully described the primary function of the federal judiciary: “It is emphatically the
Because the duty to “say what the law is” is vested entirely and exclusively in the judicial branch, the Court has made plain that Congress may not interfere with the federal courts’ independent process of adjudication and interpretation.
This crucial distinction — between withholding jurisdiction altogether and granting jurisdiction but restricting its full and independent exercise — has been reiterated time and again since Klein. See, e.g., Gutierrez de Martinez v. Lamagno,
A necessаry implication of the constitutional prohibition on congressional tinkering with the manner of judicial decision-making is that Congress may not eliminate wholesale any tool of judicial reasoning from the judicial toolbox. Courts in common law systems have developed a panoply of tools to guide them in the interpretive process, among them inferring rules from text or structure, reasoning from analogy, and applying rules from precedent. Cf Philip Bobbitt, Constitutional Interpretation 12-22 (1991). No one tool takes precedence in any situation, and in any given case several of the tools may work in tension with one another. A critical aspect of judicial reasoning is thus determining which tool most appropriately governs a particular case — in other words, which tool affords the most effective process of judicial analysis. Such a determination is inherently bound up with the power to “say what the law is” and cannot, therefore, be assumed by any person or institution outside Article III.
One tool in the judicial toolbox — stare decisis — bears particular Article III significance. The Supreme Court has held that Congress may neither require federal courts to reopen final judgments, Plaut,
In addition to prescribing the federal courts’ exclusive and independent authority to “say what the law is,” Marbury established another fundamental function of the Artiсle III “judicial power”: the duty to maintain the supremacy of federal law and, above all, the Constitution. See Liebman & Ryan, supra, at 770-71. In Mar-bury, the Court was asked to apply a federal statute that it believed, in its independent judgment, violated the Constitution — it gave the Court original jurisdiction over a class of cases not among those explicitly enumerated in Article III. In holding the statute unconstitutional, Chief Justice Marshall made absolutely plain that the courts may not be forced to give effect to a law that conflicts with the Constitution. He queried, “If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effeсt?” Marbury,
The Court extended this supremacy-maintaining principle to the federal courts’ review of state court decisions in Martin v. Hunter’s Lessee,
III.
Section 2254(d)(1) violates these fundamental attributes of the “judicial power,” granted exclusively to the federal judiciary in Article III, in two principal ways. First, in dictating that federal courts may grant habeas relief only in cases in which the state proceeding violated clearly established law “as determined by the Supreme Court,” § 2254(d)(1) prescribes a “rule of decision” — i.e., a limitation on the federal courts’ independent adjudicatory process— akin to the statute invalidated in Klein. The rule of decision prescribed in AEDPA, however, is more egregious than that of Klein because it effectively suspends the ordinary doctrine of stare decisis in the federal courts’ adjudication of habeas cases. Second, § 2254(d)(1) violates Article III by requiring federal courts tо defer to, and thereby give effect to, decisions of state courts that the federal courts interpret as violating the Constitution. Both congressionally imposed rules pose a serious threat to the integrity of our nation’s separation of powers; neither can be tolerated.
A.
Section 2254(d)(l)’s restriction of habeas relief only to prisoners whose state proceedings violated clearly established law that was “determined by the Supreme Court” prevents federal courts from exercising their independent judgment to “say what the law is.” It is, for that reason alone, unconstitutional. Congress might be able, if it so chose, to deny аt least the lower federal courts jurisdiction over habe-as corpus cases arising from state convictions. U.S. Const. Art. Ill § 2; but see Jordan Steiker, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners?, 92 Mich. L.Rev. 862, 911 (1994) (arguing that “the Suspension Clause, viewed through the lens of the Fourteenth Amendment, affords state prisoners a constitutional right to federal review of constitutional claims in the lower federal courts”). Once it has granted such jurisdiction, however — as it has via § 2254(a) — Congress may not, consistent with the constitutional separation of powers, dictate to the federal courts how to adjudicate those cases. Section 2254(d)(1) does exactly that by requiring federal courts to ignore not only the precedent of other circuits, which may be persuasive to the case at hand, but also the normally binding precedent of their own circuits in determining whether a habeas petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” § 2254(a). In other words, § 2254(d)(1) prohibits the application of the normal rules of stare decisis, a central tool of judicial decision-making, by federal courts exercising habeas jurisdiction.
B.
Section 2254(d)(1) violates Article III yet further by rеquiring the federal courts to give effect to state court rulings that in the federal courts’ independent judgment violate the Constitution. It does so in two ways. First, as explained above, a federal court may not grant habeas relief under AEDPA unless the Supreme Court has clearly articulated the governing constitutional rule. Thus, a federal court is required under AEDPA to uphold a state court proceeding that it determines violated the Constitution if that determination is based upon circuit, and not Supreme Court, precedent.
Second, even where the federal court’s determination of a constitutional violation is based upon clearly established Supreme Court precedent, the court is required, nevertheless, to uphold the state court’s unlawful action if the state court’s ruling was an “objectively reasonable” application of the Supreme Court’s constitutional interpretation. In other words, federal courts must give effect to state courts’ incorrect applications of federal constitutional law, as long as those applications are not “objectively unreasonable,” in other words, if a state court judge could reasonably have made the constitutional error. This mandate, which directs the federal courts to ignore constitutional viоlations simply because a reasonable state court judge could have reached the erroneous conclusion involved, flies in the face of Marbury and later cases establishing the federal courts’ crucial duty to maintain the supremacy of the Constitution above all other law.
IV.
The Crater panel attempts to sidestep these arguments by characterizing § 2254(d)(1) as merely a “choice of law rule,” Crater,
When an individual in state custody seeks a writ of habeas corpus, the essence of his claim is not only that his constitutional (or other federal) rights have been violated. It is that his custody is in violation of those rights. See § 2254(a); Preiser v. Rodriguez,
The right at issue in habeas cases, in other words, is not the same right as that at issue in § 1983 cases. In § 1983 cases, it is the constitutional right itself that forms the basis of the claim. In habeas cases, in contrast, it is the right not to be held in custody in violation of the Constitution that lies at the core of the suit. This is no mere difference in semantics. Where a petitioner asserts the violation of a constitutional right — indeed, even one so fundamental as the right to be free from unreasonable searches and seizures — but the violation did not contribute to the custody of the petitioner, the Court has held that such a claim is not cognizable on habeas. See Stone v. Powell,
Needless to say, § 2254(d)(1) is not, as the panel asserts, a mere “choice of law rule.” Crater,
V.
It is our constitutional duty as Article III judges to “say what the law is” and to maintain the supremacy of our founding document. These duties demand that we declare AEDPA to be what it is — an unconstitutional infringement on the “judicial power,” which Article III grants entirely and exclusively to the federal courts. Crater v. Galaza does not live up to this fundamental responsibility and should not stand as this court’s statement on AED-PA’s constitutionality. For this reason, I respectfully dissent from this court’s denial of rehearing en banc.
Notes
. The statute's imposing title is somewhat of a misnomer. The provision held constitutional by the panel — section 2254(d)(1), the centerpiece of the statute's modification of federal habeas practice — has nothing to do with anti-terrorism and little to do with the death penalty. Rather, § 2254(d)(1) restricts the rights of all habeas petitioners detained in state custody, including those, as in this case, who have neither been sentenced to death nor convicted of an act of terrorism. The title was, however, politically appealing in the wake of the bombing of the Oklahoma federal building, on which event President Clinton relied as justification for the bill of which § 2254(d)(1) was a part. President Clinton’s Statement on Antiterrorism Bill Signing,
. See Fed. R.App. P. 35(a)(2) (stating that an en banc rehearing is warranted if “the proceeding involves a question of exceptional importance”).
. The Supreme Court "has not squarely addressed [§ 2254(d)(l)]'s constitutional validity.” Crater v. Galaza,
.Moreover, in addition to the requirement on the face of the statute that the law be clearly established "by the Supreme Court,” the Court has construed AEDPA as departing from its previous jurisprudence on this point in two other ways. First, whereas under Teague v. Lane,
. Article III does not, of course, prohibit the federal courts themselves from developing rules governing the manner in which they interpret law and adjudicate cases. The Supreme Court cаn, and has, prescribed rules binding federal courts to a particular method of decisionmaking. See, e.g., Saucier v. Katz,
. The Crater panel quotes Casey for the proposition that "the rule of stare decisis is not an 'inexorable command,’ and certainly it is not such in every constitutional case.” Crater,
. I do not comment on the right of the federal courts themselves, and particularly the Supreme Court, to modify the rules of stare decisis. That is an entirely different matter that is in no way affected by the separation of powers principle we are considering here.
. Moreover, even if the Court were to refer to such longstanding, universal constitutional principles in an opinion, a mere reference would not constitute "clearly established law” under AEDPA. The Court has made clear that this term refers only to the holdings, and not to the dicta, of the Court. See Lockyer v. Andrade,
. For this reason, the argument that is often made (although not by the Crater panel)- — that § 2254(d)(1) is no different from Teague, in that both prohibit the federal courts from remedying a clear constitutional violation — is faulty on its face. Although Teague did prohibit federal courts from granting habeas relief for newly recognized constitutional violations, the justification most often offered for that result is that the Teague retroactivity rule did not require federal courts to be complicit in any ongoing violation of a habeas petitioner’s rights — because a petitioner’s custody is, by definition, not "unlawful” if no constitutional rule was recognized when that punishment was rendered. Section 2254(d)(1), on the other hand, requires federal courts to give effect to state court judgments rendered in violation of constitutional principles already estаblished when the judgments were handed down, unless those principles were established by the Supreme Court and, even when they were, unless the state court’s application of them, though incorrect, was "objectively reasonable.” In that way, § 2254(d)(1), unlike Teague, violates Marbury's clear dictate that federal courts, charged with maintaining the supremacy of the Constitution, must not be required to give effect to laws — statutory or otherwise — that conflict with their independent interpretation of the Constitution's mandates.
Of course, there is another fundamental difference between § 2254(d)(1) and Teague. Teague is a judicial doctrine imposed on the federal judiciary by the highest court. AED-PA, in contrast, is a congressional mandate that dictates to the federal courts how to adjudicate cases on habeas review. Whatever constraints Teague placed on the federal courts are therefore of no relevance to the question of the constitutionality of § 2254(d)(1).
Lead Opinion
ORDER
The panel has voted to deny the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the case en banc. However, the en banc call failed to receive a majority of votes of the nonre-cused active judges in favor of en banc consideration. Fed. R.App. P. 35.
The petitions for rehearing and rehearing en banc are denied.