That should clear things up.

Photographer: Juan Naharro Gimenez/getty images

'Rosetta Stone' Needed to Decode California's Supreme Court

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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It isn't often that Stephen Reinhardt, arguably the most liberal member of the federal bench, agrees with Jay Bybee, the judge who was head of former President George W. Bush’s Office of Legal Counsel when the torture memos were produced. But the two offered the same message yesterday in an unusual decision of the appeals court on which they both sit: they both told the California Supreme Court to get its act together when it comes to review of prisoners’ post-conviction petitions. The issue is of great importance, not only so that justice can be done to California convicts, but because it sheds light on the strange structure of post-conviction relief under federal law as interpreted by the Supreme Court.

The case in which Reinhardt and Bybee issued their opinions was heard by the U.S. Court of Appeals for the Ninth Circuit sitting en banc.  The issue was highly technical, but nevertheless important enough to merit close scrutiny by the court. The case involved a California prisoner who filed a petition with the state supreme court asking it to review his conviction as unconstitutional. The California Supreme Court denied the petition in just a few words, citing two of its own cases -- a completely standard response.

To simplify, the Ninth Circuit had to figure out the grounds on which the California Supreme Court meant to rely in dismissing the claim. There were at least two possibilities -- dismissal because the prisoner’s petition wasn’t specific enough, or dismissal because the prisoner didn’t file the petition in time. The difference mattered for figuring out whether the prisoner was then entitled to bring his claims to federal court. If the dismissal was for lack of specificity, he could go to federal court. But if it was for untimeliness, he would have missed his federal deadline, too.

The case raised a serious problem for the Ninth Circuit: how is it to know what the California Supreme Court means when it dismisses the thousands of state post-conviction proceedings that come before it every year? At oral argument, the lawyer for California admitted that there were at least three different ways the state supreme court makes the exact same legal arguments for rejection.

As Reinhardt pointed out in his concurrence, the state court’s explanation matters because federal law as interpreted by the Supreme Court has “placed an almost impossible burden on state courts: to be the final decision-maker in an overwhelming number of cases involving fundamental constitutional rights of criminal defendants.” 

What Reinhardt means is that, under the Antiterrorism and Effective Death Penalty Act of 1996, the federal courts have to accept state courts’ constitutional rulings in post-conviction cases even if they are wrong, provided they aren’t unreasonably wrong. In other words, almost all the time, the state courts are the last stop for a prisoner’s claim that he or she was convicted in violation of the Constitution.

Reinhardt went on to give some egregious examples of constitutional violations that go unchecked because of the Supreme Court’s restrictive interpretation of AEDPA. He expressed sympathy for the California Supreme Court, with its “massive potential caseload and severely strained resources.” Yet he urged the court, which he said had been “perhaps … not so long ago the most innovative court in the nation” to do a better job explaining its holdings.

Bybee was much tougher on the California court. He wrote, he said, “to express my frustration that communication between the California Supreme Court and our court … has devolved into a series of hints that the California Supreme Court obliquely telegraphs and that we struggle to decipher.”

To dramatize the point, Bybee said that in the very case the court was considering, he had voted to deny the petition as a member of the initial panel that heard the case, but was now reversing himself based on a different interpretation of the California court’s signals.

And he complained that his court couldn’t do its job “unless we discover a Rosetta Stone in the San Francisco Bay that helps us crack the California Supreme Court’s habeas code.”

Reinhardt’s opinion and Bybee’s differed in emphasis. The liberal wanted to draw attention to the highly problematic way AEDPA works in practice, blaming the federal law as interpreted by the Supreme Court, while the conservative wanted to blame the California Supreme Court for its opacity.

But the shared message is that something is going wrong in the California Supreme Court’s post-conviction jurisprudence. The court has several distinguished young members who are potential Hillary Clinton Supreme Court nominees, including Leondra Kruger and Goodwin Liu. These judges should take the lead in trying to improve their court’s approach to post-conviction relief. As the Ninth Circuit opinions show, it isn’t a partisan issue.

  1. In every other federal appeals court, the made-up French phrase “en banc” (correctly pronounced “in bank,” by the way, NOT as if it were French) means that all the judges hear the case on the bench at the same time. Not so in the quirky and enormous Ninth Circuit, which has so many judges that its en banc cases are heard by randomly selected panels of eleven.

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Noah Feldman at nfeldman7@bloomberg.net

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James Greiff at jgreiff@bloomberg.net