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.