Thread by @radleybalko

The 10th Circuit just issued a new AEDPA opinion. The case isn't about innocence. Instead, it deals with a Wyoming law that allows for a lighter kidnapping sentence if the offender released the victim peacefully.

ca10.uscourts.gov/sites/ca10/fil…

But the AEDPA discussion applies to innocence cases too, so it's worth looking at.

At issue is whether the burden should have been on the defendant or the state to show if the victim had been released peacefully. The dissent believes the state was wrong here.

Thing is, the majority doesn't even necessarily disagree. It's that it doesn't matter. Even if the state court is wrong, under SCOTUS AEDPA jurisprudence, a federal court can only overturn on a constitutional issue if “there is no possibility" that ...

... any "fairminded jurist" would find the ruling reasonable. And here, they say even if the Wyoming court was wrong, it wasn't *that* wrong, so the ruling stands.

Notably, it was not a Wyoming Supreme Court ruling at issue here. The state supreme court upheld the ...

... conviction without an opinion. So the 10th Circuit had to go lower, down to a district court judge, who also happened to be the trial judge.

This is where AEDPA is so destructive. Federal judges are appointed, confirmed and have life tenure to promote judicial independence.

We want them free to make unpopular rulings without fear of retaliation from voters. Constitutional rights can't be voted away by a majority (or at least shouldn't!).

AEDPA takes enforcement of constitutional rights away from the federal courts and gives it to state courts.

Given that many state supreme courts are elected, AEDPA basically subjects constitutional rights to the whims of voters, at least indirectly.

Incumbent state supreme court justices have frequently been targeted by law-and-order groups for ruling ....

.. in favor of the accused. That targeting often works. I've written about incumbent justices who were defeated after ads accused them of "voting to free a child killer," or some other nonsense. In a couple cases, the prisoner in question was actually innocent.

Studies have ...

... also shown that when justices are targeted this way, even if they incumbent wins, they're likely to rule in favor of the accused.

But here we're not even talking about a state Supreme Court. We're talking about a trial judge.

At some point, we decided -- wisely -- that...

... the Constitution is important enough that it should be entrusted only to judges who have been nominated by a president, approved by the Senate, and given life tenure to insulate them from influence.

AEDPA undid all of that, essentially outsourcing enforcement of the ...

... Bill of Rights to the last state court to rule on a given case.

One more thing: Sometimes, there is no opinion. In those cases, the Supreme Court has said that if federal judges can merely *conceive of* an opinion that supports the outcome, they must uphold the conviction.

The conceived-of opinion also doesn't need to be correct on the law. It only needs to avoid being so wrong that it fails the "no fairminded juror" test.

The 5th Circuit has gone further -- even if the highest state court *did* rule, and the opinion *is* that bad, the federal...

... courts must still defer if they can conceive of their own, alternate reasoning for the pro-state outcome.

That reasoning too could still be wrong on the law. It only needs to pass the "no fairminded jurist" standard.