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This week’s Supreme Court decision overturning an outlandish ruling of the 9th Circuit Court of Appeals contains a significant encouragement for those who believe that Congress should rein in activist federal judges.

In Carey v. Musladin, a man convicted of murder complained that his constitutional right to a fair trial was violated by the fact that family members of the murder victim wore buttons in the courtroom bearing the image of their lost relative. The 9th Circuit held that such a practice did indeed violate the constitutional rights of the defendant based on the precedents coming from, you guessed it, the 9th Circuit itself.

The Supreme Court held that the 9th Circuit was not at liberty either to apply its own precedent in this way or to invent new precedent for the occasion. This constraint was due to a change in the habeas corpus law enacted by Congress in 1996 – in the old days when the Republicans were in charge of Congress and while they still behaved more or less like Republicans.

Murder is normally prosecuted as a state crime. Appeals from convictions must go through the state court system up to the supreme court of each respective state. Once all appeals in the state system are exhausted, a criminal defendant may ask the Supreme Court of the United States to review his conviction for any alleged constitutional error. An incredibly small percentage of such requests for review are granted by the Supreme Court.

However, there is another path into the federal system once all that is completed. A state prisoner may petition the federal courts for a writ of habeas corpus to review his conviction for any claims of constitutional error. For decades the habeas corpus system was employed by activist federal judges to dictate an astounding array of details of state criminal law and procedure. State prosecutors not only had to win all the way through the state system, but federal prisoners could file their own habeas corpus proceedings, dragging out legal issues for years. Indeed, the murder in this case took place on May 13, 1994.

Fortunately, in 1996 Congress placed a limitation on the power of federal courts to micromanage the state criminal justice system in the guise of constitutional interpretation. The reform act established a rule that a habeas corpus action coming from state courts must establish that the challenged ruling in the state courts was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” This remarkably short phrase places a pair of titanium handcuffs on “runaway federal appeals courts” – a description so commonly associated with the 9th Circuit that the court could practically claim a copyright violation if the term were used to describe any other circuit.

There are two key constraints in this statute.

First, the only sources of federal law that may be used in habeas corpus challenges are decisions from the Supreme Court itself. In other words, the 9th Circuit may not use its own precedents nor may it invent new constitutional interpretations to release convicted felons from state prisons. It is impossible to overstate how significant this development will be for the stability of state judicial proceedings.

The second constraint is that the federal law had to be “clearly established.” The Supreme Court reviewed its own precedent relative to misconduct at trial and held that constitutional violations were normally only demonstrated by actions taken by the government. These family members were not government actors; therefore, there was no prosecutorial misconduct even if the buttons were inappropriate.

This decision limits the ability of federal courts to contort a Supreme Court constitutional interpretation into an unrecognizable shape by applying it to wholly unrelated factual patterns.

At the end of the day, the Supreme Court said very little about the family members and their buttons. Judicial misconduct, not the “misconduct” of family members, was the core issue in the case. Congress took action to stop the federal judiciary from inappropriate intervention, and – surprise, surprise – it worked!



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