I just returned from the oral argument in Irons v. Carey, a 9th circuit habeas case where the Court, on its own motion, raised a question of constitutionality of AEDPA. It was a very entertaining 40 minutes.
Interestingly enough, the constitutional issue was not the most interesting issue in this case. That is, at least in part, because it was fairly clear from the questions to the State that two of the judges (Reinhardt and Noonan) think that AEDPA might violate the separation of powers doctrine by imposing a choice of law on the federal courts in habeas cases. Judge Noonan asked one of the State's attorneys a very interesting question regarding AEDPA imposing a choice of law on the U.S. Supreme Court. When the State's attorney stated that it would, Noonan asked him how could the Supreme Court revisit its own rulings in constituitonal cases in such circumstances. The State's attorney's response was that it could not on federal habeas cases, but it could on cert petitions from state supreme court decisions on direct appeal and on state habeas petitions. But does not this answer suggest that AEDPA restricts the courts' application of the law to decide constitutional issues???
I was far more intrigued by the discussion of the merits of the appeal - whether the State Parole Board violated constitutional rights of a California prisoner when it denied (may be repeatedly denied) his parole request based solely on the fact that the murder he committed 20 years ago was particularly aggregious. The district court found that the Board acted arbitrarily and capriciously in denying parole because it did so based on the facts of the crime alone, without tying those facts to the question of whether the prisoner is presently a public safety concern. The State's position on appeal was the Board could deny parole based on the facts of the crime alone, potentially for the duration of a life sentence. Not surprisingly, Judge Reinhardt asked the State's attorneys whether their construction of the power of the Parole Board effectively negates any difference between a life sentence with / without possibility of parole.
My impression was that on the second issue, Reinhardt clearly felt there was a constitutional violation, Noonan was "on the fence", and Fernandez would find that the Board acted within its authority. I am inferring Fernandez' position from his silence at oral argument and from his refusal to join the additional briefing order re: constitutionality of AEDPA.
In terms of presentation, counsel for the defendant (I think she was a Federal Public Defender from Sacramento) was superb. She was prepared for all possible questions, and she was very clear in her presentation - she convinced me as to the second issue even though I had not read the briefs. The State's attorney dealing with the AEDPA issue was not well prepared. When Judge Reinhardt repeatedly tried to get him to answer a hypothetical question about construction of the habeas statute, he flatly refused, dismissively stating that he did not read the habeas statute "that way." Also, his presentation on that issue was very brief and contained no case citations - I would think that the constitutionality of AEDPA has been addressed before by the courts.
One additional observation - the panel here was very gentle in their questioning of counsel, even when the State's attorney refused to answer the Court's question. I could think of a few state court justices who would have been far less forgiving in that instance. Also, tough questions (in terms of substance) were pretty evenly distributed to both sides - no one got a free pass today on any issues.