                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

CARL MERTON IRONS, II,               
              Petitioner-Appellee,
                                           No. 05-15275
U.S. ATTORNEY GENERAL,
                       Intervenor,          D.C. No.
                                         CV-04-00220-LKK
               v.
                                            OPINION
TOM L. CAREY, Warden,
           Respondent-Appellant.
                                     
      Appeal from the United States District Court
          for the Eastern District of California
   Lawrence K. Karlton, Senior District Judge, Presiding

                 Argued May 11, 2005
                Submitted March 6, 2007
                San Francisco, California

                   Filed March 6, 2007

      Before: Stephen Reinhardt, John T. Noonan, and
          Ferdinand F. Fernandez, Circuit Judges.

               Opinion by Judge Reinhardt;
              Concurrence by Judge Noonan;
             Concurrence by Judge Reinhardt;
             Concurrence by Judge Fernandez




                           2469
2472                  IRONS v. CAREY


                       COUNSEL

Bill Lockyer, Attorney General of the State of California,
Robert R. Anderson, Chief Assistant Attorney General, Ste-
phen P. Acquisto, Supervising Deputy Attorney General, &
Pamela B. Hooley, Deputy Attorney General, for the
respondent-appellant.
                         IRONS v. CAREY                      2473
Quin Denvir, Federal Defender, & Ann C. McClintock, Assis-
tant Federal Defender, for the petitioner-appellee.


                           OPINION

REINHARDT, Circuit Judge:

   The state appeals the district court’s grant of habeas corpus
to Carl Merton Irons II. The district court granted relief after
finding that there was insufficient evidence in the record to
support the California Board of Prison Term’s decision to
deem Irons ineligible for parole in 2001. In light of the Cali-
fornia Supreme Court’s decision in In re Dannenberg, 34 Cal.
4th 1061 (Cal. 2005), and our decision in Sass v. California
Board of Prison Terms, 461 F.3d 1123 (9th Cir. 2006), both
decided after the district court issued its order in this case, we
reverse.

    FACTUAL AND PROCEDURAL BACKGROUND

   In 1985, Irons was convicted of second degree murder in
the death of his former housemate and sentenced to seventeen
years to life in prison. At the time of the offense, Irons was
living in the home of a couple, with another tenant, John
Nicholson. The couple suspected that Nicholson was dealing
drugs and was stealing from them. Irons shared their suspi-
cions. He confronted Nicholson and an angry argument
ensued in which Nicholson denied responsibility for the
thefts. Irons went to his room, retrieved his gun, and then
went to Nicholson’s room where he fired 12 rounds into Nich-
olson and, after Nicholson complained that he was in pain,
stabbed him twice in the back. He then wrapped Nicholson’s
body in a sleeping bag and left it in the room for the ten days
it took him to procure a car. Irons then took the body to the
coast, weighed it down, and disposed of it in the ocean.
2474                     IRONS v. CAREY
   When the police found the body, their investigation led
them to the house where Irons and the victim had lived.
Forensic analysis showed that Nicholson had died on the
premises, and the police decided to arrest the owner of the
house. Irons intervened, explained to the police that they had
the wrong person, and confessed to the killing. He was subse-
quently convicted of second degree murder and sentenced to
seventeen years to life in prison with the possibility of parole.
Prior to this conviction, Irons had no criminal record.

   At the time of his 2001 parole hearing, Irons had been
incarcerated for sixteen years. Throughout his confinement,
his conduct has been exemplary. From 1988 to the present he
has maintained “Medium A” custody status, indicating that
prison officials see him as a low threat. He has not engaged
in further acts of violence, nor has he received any C.D.C.
128A written disciplinary charges.

   Irons suffers no mental health problems, and has received
positive evaluations from the psychologists and counselors
who have examined and treated him. He has been extremely
industrious while in prison, maintaining average to excep-
tional job performance in every position he has occupied. He
has also received certificates of completion in several voca-
tional training programs, and has participated in numerous
self-help, substance abuse treatment, violence prevention and
stress management programs. Even members of the Board
have commented that Irons has “programmed in an exemplary
manner in all areas.”

   Irons also has solid plans for the future. He will live with
his mother when he is released and he has a standing job offer
from a friend who owns a video production business. He also
has the support of Deputy District Attorney Stephen Wag-
staffe, the prosecutor assigned to Irons’ case from the outset.

   These facts notwithstanding, the Board determined that
Irons was unsuitable for parole in 1994, 1996, 1998, 1999,
                            IRONS v. CAREY                           2475
and 2001.1 The Board’s decision in 2001, the decision at issue
in this case, was based on three factors. “First and foremost
was the commitment offense itself.” The Board found that
Irons’ crime was “carried out in an especially cruel and cal-
lous manner.” It further noted his motivation for the killing
was trivial and that Irons was using drugs around the time of
the offense. Second, the Board stated that Irons “needs thera-
py” and recommended “continued participation in self-help
programming.” Finally, the presiding commissioner stated, “I
think you were asked by your counsel whether a situation like
this would happen again, whether you would kill somebody.
And I think you said, I don’t think so . . . [T]hat’s not a very
convincing reply.”

  After filing an unsuccessful administrative appeal challeng-
ing the Board’s decision, Irons filed a state habeas petition in
Marin County Superior Court alleging that the Board’s 2001
unsuitability determination violated his due process rights.
The Superior Court denied the petition, finding that the
Board’s decision was supported by “some evidence” and thus
did not violate due process. Irons appealed, and the California
Court of Appeal and the California Supreme Court issued
summary denials.

   He then filed a petition for writ of habeas corpus in federal
district court, and in January of 2005 the district court adopted
the magistrate judge’s findings and recommendations granting
the petition. The district court concluded that the state court
unreasonably applied clearly established Supreme Court pre-
cedent because the board’s decision was without evidentiary
support, and further held that the Board’s continued reliance
on Irons’ commitment offense and prior conduct to deem him
unsuitable for parole violated Irons’ right to due process.
  1
    The record also shows that he was deemed unsuitable for parole in
2002, 2003, and 2004. We, of course, express no view as to the constitu-
tionality of these denials or the applicability of the warning set forth in
Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003). See pp. 2480-81, infra.
2476                      IRONS v. CAREY
   On appeal, the state argues that the district court erred in
concluding that the Board’s 2001 decision was not supported
by “some evidence,” and that the district court failed to afford
the California state court decision upholding the Board’s
unsuitability determination the proper degree of deference
required under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA).

                  STANDARD OF REVIEW

   We review the district court’s decision to grant Irons’ peti-
tion for habeas corpus de novo. Leavitt v. Arave, 371 F.3d
663, 668 (9th Cir. 2004). Because Irons filed his petition after
the effective date of AEDPA, his petition for habeas corpus
may be granted only if he demonstrates that the state court
decision denying relief was “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1).

                         DISCUSSION

   [1] California Penal Code section 3041 vests Irons and all
other California prisoners whose sentences provide for the
possibility of parole with a constitutionally protected liberty
interest in the receipt of a parole release date, a liberty interest
that is protected by the procedural safeguards of the Due Pro-
cess Clause. Sass, 461 F.3d at 1128; Biggs, 334 F.3d at 914;
McQuillion v. Duncan, 306 F.3d 895, 903 (9th Cir. 2002); see
also Bd. of Pardons v. Allen, 482 U.S. 369, 377-78 (1987)
(quoting Greenholtz v. Inmates of Neb. Penal & Corr. Com-
plex, 442 U.S. 1, 12 (1979)). The Supreme Court has clearly
established that a parole board’s decision deprives a prisoner
of due process with respect to this interest if the board’s deci-
sion is not supported by “some evidence in the record,” Sass,
461 F.3d at 1128-29 (citing Superintendent v. Hill, 472 U.S.
445, 457 (1985)); see also Biggs, 334 F.3d at 915 (citing
McQuillion, 306 F.3d at 904), or is “otherwise arbitrary,” Hill,
                             IRONS v. CAREY                           2477
472 U.S. at 457.2 When we assess whether a state parole
board’s suitability determination was supported by “some evi-
dence” in a habeas case, our analysis is framed by the statutes
and regulations governing parole suitability determinations in
the relevant state. See Biggs, 334 F.3d at 915. Accordingly,
here we must look to California law to determine the findings
that are necessary to deem a prisoner unsuitable for parole,
and then must review the record in order to determine whether
the state court decision holding that these findings were sup-
ported by “some evidence” in Irons’ case constituted an
unreasonable application of the “some evidence” principle
articulated in Hill, 472 U.S. at 454.

    [2] Under California law, prisoners serving an indetermi-
nate sentence for second degree murder “may serve up to life
in prison, but [ ] become eligible for parole consideration after
serving minimum terms of confinement.” Dannenberg, 34
Cal. 4th at 1078. Although the Board must “normally set a
parole release date” before the minimum term has been
served, id., an inmate “ ‘shall be found unsuitable for parole
and denied parole if, in the judgment of the [Board,] the pris-
oner will pose an unreasonable risk of danger to society if
released from prison,’ ” id. at 1080 (quoting Cal. Code Regs.,
tit. 15 § 2402(a)).3

  [3] The Board must determine whether a prisoner is pres-
ently too dangerous to be deemed suitable for parole based on
  2
     We need not address whether the Board’s determination was “other-
wise arbitrary” because that question is not implicated here.
   3
     Specifically, under California Penal Code section 3041(a), “one year
before the prisoner’s minimum eligible parole date, a Board panel shall
meet with the inmate, ‘shall normally set a parole release date,’ and shall
do so ‘in a manner that will provide uniform terms for offenses of similar
gravity and magnitude in respect to their threat to the public.’ ” Dannen-
berg, 34 Cal. 4th at 1078. However, a “determination of an individual
inmate’s suitability for parole under section 3041, subdivision (b) must
precede any effort to set a parole release date under the uniform-term prin-
ciples of section 3041, subdivision (a). Id. at 1079-80.
2478                          IRONS v. CAREY
the “circumstances tending to show unsuitability” and the
“circumstances tending to show suitability” set forth in Cal.
Code. Regs., tit. 15 § 2402(c)-(d).4 A prisoner’s commitment
offense may constitute a circumstance tending to show that a
prisoner is presently too dangerous to be found suitable for
parole, but the denial of parole may be predicated on a prison-
er’s commitment offense only where the Board can “point to
factors beyond the minimum elements of the crime for which
the inmate was committed” that demonstrate the inmate will,
at the time of the suitability hearing, present a danger to soci-
ety if released. Dannenberg, 34 Cal. 4th at 1071. Factors
beyond the minimum elements of the crime include, inter
alia, that “[t]he offense was carried out in a dispassionate and
calculated manner,” that “[t]he offense was carried out in a
manner which demonstrates an exceptionally callous disre-
gard for human suffering,” and that “[t]he motive for the
crime is inexplicable or very trivial in relation to the offense.”
Cal. Code. Regs., tit. 15 § 2402(c)(1)(B), (D)-(E).

   Here, the Board based its 2001 determination that Irons was
unsuitable for parole “first and foremost” on the fact that
“[t]he offense was carried out in an especially cruel and cal-
lous manner . . . which demonstrates a callous disregard for
human life.” It also noted that “the motive for this crime was
  4
     Under these regulations, the circumstances tending to show that a pris-
oner is unsuitable include: (1) the commitment offense, where the offense
was committed in “an especially heinous, atrocious or cruel manner”; (2)
the prisoner’s previous record of violence; (3) “a history of unstable or
tumultuous relationships with others”; (4) commission of “sadistic sexual
offenses”; (5) “a lengthy history of severe mental problems related to the
offense”; and (6) “serious misconduct in prison or jail.” Cal. Code. Regs.,
tit. 15 § 2402(c). Circumstances tending to show that a prisoner is suitable
for parole include: (1) the prisoner has no juvenile record; (2) the prisoner
has experienced reasonably stable relationships with others; (3) the pris-
oner has shown remorse; . . . (6) the prisoner lacks any significant history
of violent crime; . . . (8) the prisoner “has made realistic plans for release
or has developed marketable skills that can be put to use upon release”;
(9) “[i]nstitutional activities indicate an enhanced ability to function
within the law upon release.” Cal. Code. Regs., tit. 15 § 2402(d).
                         IRONS v. CAREY                       2479
trivial in relation to the offense.” Although we agree with the
district court that the other bases for the Board’s unsuitability
determination — that Irons “needs therapy” and that when
asked whether he would kill again said, “I don’t think so” —
were wholly unsupported by “some evidence,” in light of
Dannenberg and Sass we are unable to conclude that the
Board’s findings regarding the nature of the commitment
offense were without some evidentiary support.

   In Dannenberg the California Supreme Court addressed a
prisoner’s challenge to the parole Board’s decision to deem
him unsuitable for parole on the basis of his commitment
offense in spite of the fact that virtually all other relevant fac-
tors militated in favor of a finding of suitability. Dannenberg
had been sentenced to 15 years to life in prison for the second
degree murder of his wife in 1985. After a domestic argu-
ment, Dannenberg struck multiple blows to his wife’s head
with a pipe wrench and then pushed her into a tub of water
in which she drowned. 34 Cal. 4th at 1095. At his 1999 parole
hearing the Board concluded that Dannenberg presented a
danger to society if released and was thus unsuitable for
parole because the second degree murder he committed was
“ ‘especially callous and cruel,’ showed ‘an exceptionally cal-
lous disregard for human suffering,’ and was disproportionate
to the ‘trivial’ provocation” for the offense. 34 Cal. 4th at
1095. The California Supreme Court held that the Board’s
decision to deem Dannenberg unsuitable on this basis was
supported by “some evidence” because the Board “pointed to
circumstances of the inmate’s offense suggesting viciousness
beyond the minimum elements of second degree murder . . . .
Accordingly, [ ] the Board could use the murder committed
by Dannenberg as a basis to find him unsuitable, for reasons
of public safety, to receive a firm parole released date.” Id.

   [4] Because we find that Irons’ crime was similarly cruel
or vicious, we cannot say that there was not “some evidence”
to support the Board’s determination that Irons was unsuitable
for parole under California law. Specifically, given that his
2480                    IRONS v. CAREY
commitment offense, standing alone, is a sufficient basis for
deeming a petitioner unsuitable where, as here, there is some
evidence to support a finding that “the offense was carried out
in a manner which demonstrates an exceptionally callous dis-
regard for human suffering” and the “motive for the crime is
inexplicable or very trivial in relation to the offense,” Cal.
Code Regs., tit. 15 § 2402(c)(1)(D)-(E), we cannot say that
the state court unreasonably applied Hill’s “some evidence”
principle.

   Irons argues that, even if there is “some evidence” to sup-
port a finding that he is unsuitable for parole under the appli-
cable California regulations, the Board’s reliance on an
immutable factor to deny him parole, namely his commitment
offense, nonetheless violated due process. In support of this
argument, he cites our decision in Biggs, 334 F.3d 910. In
Biggs, we affirmed the district court’s denial of a prisoner’s
petition for habeas corpus challenging the Board’s determina-
tion that he was unsuitable for parole on the basis of his com-
mitment offense. 334 F.3d at 916. Although we held that the
Board’s decision was supported by “some evidence” because
“[t]he murder of which Biggs was convicted involved killing
a witness in a manner which exhibited callous disregard for
life,” we made clear that “[a] continued reliance in the future
on an unchanging factor, the circumstance of the offense and
conduct prior to imprisonment, runs contrary to the rehabilita-
tive goals espoused by the prison system and could result in
a due process violation.” Id. at 916-17. Specifically, we held
that a

    parole board’s sole . . . reliance on the gravity of the
    offense and conduct prior to imprisonment to justify
    denial of parole can be initially justified as fulfilling
    the requirements set forth by state law. Over time,
    however, should Biggs continue to demonstrate
    exemplary behavior and evidence of rehabilitation,
    denying him a parole date simply because of the
    nature of Biggs’ offense and prior conduct would
                         IRONS v. CAREY                      2481
    raise serious questions involving his liberty interest
    in parole.

Id. at 916.

   Subsequently, in Sass, we held that denying parole to an
individual in reliance on his offense of commitment did not
violate due process. 461 F.3d at 1129. Although we acknowl-
edged that Biggs represents the law of this circuit and specifi-
cally noted that “continued reliance . . . [on] the offense and
on conduct prior to imprisonment . . . could result in a due
process violation,’ ” id., we nonetheless held that the Board’s
reliance on the “gravity” of the second degree murder of
which Sass was convicted, in combination with prior inci-
dents of unlawful conduct, provided a sufficient basis for the
Board to deem Sass unsuitable for parole. Because the murder
Sass committed was less callous and cruel than the one com-
mitted by Irons, and because Sass was likewise denied parole
in spite of exemplary conduct in prison and evidence of reha-
bilitation, our decision in Sass precludes us from accepting
Iron’s due process argument or otherwise affirming the dis-
trict court’s grant of relief.

   [5] We note that in all the cases in which we have held that
a parole board’s decision to deem a prisoner unsuitable for
parole solely on the basis of his commitment offense com-
ports with due process, the decision was made before the
inmate had served the minimum number of years required by
his sentence. Specifically, in Biggs, Sass, and here, the peti-
tioners had not served the minimum number of years to which
they had been sentenced at the time of the challenged parole
denial by the Board. Biggs, 334 F.3d at 912; Sass, 461 F.3d
1125. All we held in those cases and all we hold today, there-
fore, is that, given the particular circumstances of the offenses
in these cases, due process was not violated when these pris-
oners were deemed unsuitable for parole prior to the expira-
tion of their minimum terms.
2482                         IRONS v. CAREY
   Furthermore, we note that in Sass and in the case before us
there was substantial evidence in the record demonstrating
rehabilitation. In both cases, the California Board of Prison
Terms appeared to give little or no weight to this evidence in
reaching its conclusion that Sass and Irons presently consti-
tuted a danger to society and thus were unsuitable for parole.
We hope that the Board will come to recognize that in some
cases, indefinite detention based solely on an inmate’s com-
mitment offense, regardless of the extent of his rehabilitation,
will at some point violate due process, given the liberty inter-
est in parole that flows from the relevant California statutes.
Biggs, 334 F.3d at 917.5

  The district court’s order granting Irons’ petition for habeas
corpus is REVERSED.



NOONAN, Circuit Judge, concurring:

   Proper resolution of this case, on its face involving the fate
of a single individual, involves the clash of two constitutional
principles of importance to every inhabitant of our country:

  Congress has the power to determine the jurisdiction of all
federal courts.
  5
    Although we requested and received briefing on the constitutionality of
the provision of AEDPA that directs federal courts to grant habeas relief
to state petitioners only when the state court decision denying relief was
“contrary to, or involved an unreasonable application, of clearly estab-
lished Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. 2254(d)(1), we are now persuaded that Duhaime v.
Ducharme, 200 F.3d 597 (9th Cir. 2000), answers that question, correctly
or not, for the court. A three-judge panel of this court is without authority
to overrule a holding of an earlier panel. Miller v. Gammie, 335 F.3d 889,
899 (9th Cir. 2003) (en banc). Only an en banc court has the authority to
do so. Id.
                        IRONS v. CAREY                     2483
   Congress does not have the power to determine how a fed-
eral court shall decide a case.

   An easy solution of the clash is to say that the greater
power includes the lesser. If Congress can determine jurisdic-
tion and so take away any judicial supervision of the subject,
a fortiori Congress can specify what materials the courts may
use in deciding the case. This reasoning is of a mathematical
character. It has the precision and the force of Euclidean
geometry. In addition, it has a pragmatic appeal. Why force
Congress to use its radical power to remove jurisdiction, if the
purposes of Congress will be served by Congress directing the
process of decision?

   This line of argument has an undoubted appeal. It is none-
theless mistaken. Euclidean logic does not dominate a judge’s
careful consideration of all the aspects of matters that are far
from linear. A simple example: The power to kill is greater
than the power to torture. The state may kill individuals. It
may not torture them. The pragmatic argument that Congress
could remove all jurisdiction may be met pragmatically: the
people would not put up with legislative abolition of such
sweeping character, any more than the people would say, “If
you can’t torture them, kill them.”

   More fundamentally, the Euclidean line of argumentation
advanced above is based on a profound misunderstanding of
the judicial power and the role that judges, uncontrolled in
their reasoning by the legislature, perform to make it work.
Legislatures exist to make laws. Courts exist to decide cases.
The separation of these functions is part of our democratic
system of government. To allow the legislature to decide a
case is to deny the separation. To allow the legislature to tell
a court how a case should be decided is worse. It allows the
legislature to mask itself under judicial robes. It puts forward
as the judgment of a court what in actuality is the judgment
of the legislature. Impermissibly it mixes the two branches. It
does so to the great detriment of the judicial branch which is
2484                     IRONS v. CAREY
made to act as if it were performing its judicial task while it
has had its ability to perform this task removed.

   It may be said that Congress has the power to approve or
disapprove the Federal Rules of Procedure, and these rules
play a part in the decision of a case. It may be further argued
that Congress can determine the number of judges, where they
shall sit, how many assistants they may have, and what
appeals may be taken, and that all these determinations have
an impact on how a particular case will be decided.

   True as these observations are, they do not go to the heart
of the matter. The number, venue, and assistance given the
judges point to no particular outcome in the decision of a
case, nor does the path provided for appeal. The Federal
Rules, formulated by judges, operate impartially in all cases.
They preordain a decision in none. Even more importantly,
they do not determine the law the judges must apply.

   Congress can enact legislation with an effect on the future
of litigation in a particular case, e.g. by removing the statutory
ground for an injunction restricting future conduct. Mount
Graham Coalition v. Thomas, 89 F.3d 554 (9th Cir. 1996).
Congressional alteration of a statute bearing on future conduct
does not usurp the judicial function.

   AEDPA specifies that an application for a writ of habeas
corpus “shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim (1) resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States . . . .” 28 U.S.C.
§ 2254(d).

  Concurring in Williams v. Taylor, 520 U.S. 362, 412
(2000), Justice O’Connor glossed “clearly established” to
mean a holding by the Supreme Court, not a dictum. Justice
                         IRONS v. CAREY                      2485
O’Connor’s concurrence was adopted by a majority of the
Court. Her gloss on “clearly established” was itself dictum
because it was not necessary to the decision of the case. Wil-
liams, 529 U.S. at 413 (O’Connor, J., concurring). It is a dic-
tum that has banished dicta from the grounds for granting
habeas corpus. It is a dictum necessarily narrowing the normal
way in which decisions of the highest court are read and
applied.

   AEDPA does operate over the whole class of cases of
habeas corpus. It does not require a result in any particular
case. What it does do is to strike at the center of the judge’s
process of reasoning. It shuts the judge off from the judge’s
normal sources of law and curbs that use of analogy which is
the way the mind of a judge works. In our system of law
where precedent prevails and is developed, AEDPA denies
the judge the use of circuit precedent, denies development of
Supreme Court and circuit precedent, denies the deference
due the penumbra and emanations of precedent, and even
denies the courts the power to follow the law as now deter-
mined by the Supreme Court — the precedent to be applied
must have been in existence at the earlier moment when a
state decision occurred. A more blinkered concept of law can-
not be imagined — law, particularly constitutional law — is
treated as what once was the law. The development of doc-
trine is despised. That despisal is a direct legislative interfer-
ence in the independence of the judiciary.

   It could be said that the ban on using Supreme Court deci-
sions issued later than the relevant state court determination
is a ban on the retroactivity of such decisions; and the
Supreme Court has more than once announced constitutional
decisions that are good for the future but cannot be read back
into the past. See, e.g., Linkletter v. Walker, 381 U.S. 618
(1965). True as that is, for the Supreme Court to choose not
to make its decisions retroactive is not the same as Congress
choosing to do it. The latter action is an interference with a
2486                     IRONS v. CAREY
prerogative that goes with wise judging. Whether to judge
only for the future is for the judge to decide.

   It might equally be asserted that the exclusion of a circuit
court’s precedents from consideration by the circuit is simply
a limitation on the jurisdiction of circuit courts. So it might be
said, but far from accurately. AEDPA does not address juris-
diction: it addresses the materials for judging. It deprives a
whole class of cases of their normal value as governing
authority for the circuit which has decided them.

   Federal judges have taken an oath to uphold the Constitu-
tion of the United States. That oath has always been under-
stood to mean the Constitution as it is interpreted by the
courts. It is, of course, a grade school fiction that the Constitu-
tion does not change. It changes constantly: by constitutional
amendment, by decisions of the Supreme Court, and by the
invention of such things as the airplane, automobile, and
internet. For a judge to be frustrated in following the most
recent decision of the Supreme Court is perilously close to
forcing the judge to violate his oath to uphold the Constitution
as it presently is understood.

   Sometimes a lawyer or even a judge will say, If this rule
is upheld, you can expect even worse to follow — a variant
of the biblical expression, “If that is what they do in the green
wood, what will they do in the dry?” It is unnecessary to
engage in such speculation as to AEDPA. It already appears
to accomplish a sizeable shrinkage of judicial independence.

   Can the constitutionality of AEDPA be sustained? Our cir-
cuit has so ruled. Duhaime v. DuCharme, 200 F.3d 597, 601
(9th Cir. 1999). I am bound by this decision. Moreover, the
Supreme Court has upheld the application of AEDPA in a
multitude of cases, tacitly assuming its constitutionality. Yet
if I cannot depart from the law of the circuit, I may still ask
the question as to constitutionality in the light of governing
decisions by the Supreme Court.
                        IRONS v. CAREY                         2487
   As every law school student knows, Marbury v. Madison,
5 U.S. 137, 1 Cranch 137 (1803), held unconstitutional an Act
of Congress that attempted to confer jurisdiction on the
Supreme Court. Writing for the unanimous court, Chief Jus-
tice Marshall declared:

      The judicial power of the United States is
    extended to all cases arising under the constitution.

       Could it be the intention of those who gave this
    power, to say that, in using it, the constitution should
    not be looked into? That a case arising under the
    constitution should be decided without examining
    the instrument under which it arises?

      This is too extravagant to be maintained.

       In some cases then, the constitution must be
    looked into by the judges. And if they can open it at
    all, what part of it are they forbidden to read, or to
    obey?

      ....

       Why does a judge swear to discharge his duties
    agreeably to the constitution of the United States, if
    that constitution forms no rule for his government?
    if it is closed upon him, and cannot be inspected by
    him?

       If such be the real state of things, this is worse
    than solemn mockery. To prescribe, or to take this
    oath, becomes equally a crime.

Marbury, 5 U.S. at 178-80.

   These general and fundamental propositions were estab-
lished near the beginning of our country. They were set out
2488                     IRONS v. CAREY
in a case involving congressional meddling with the constitu-
tion’s limitations on jurisdiction. They unarguably govern
congressional efforts to prescribe how a court shall decide a
case.

  In a case foundational in vindicating the power of the
Supreme Court to review and reverse the judgment of the
highest court of a State, large though this impairment is of the
sovereignty of the State, Justice Story wrote:

       If, then, it is a duty of congress to vest the judicial
    power of the United States, it is a duty to vest the
    whole judicial power. The language, if imperative as
    to one part, is imperative as to all. If it were other-
    wise, this anomaly would exist, that congress might
    successively refuse to vest the jurisdiction in any one
    class of cases enumerated in the constitution, and
    thereby defeat the jurisdiction as to all; for the con-
    stitution has not singled out any class on which con-
    gress are bound to act in preference to others.

       ....

       [E]ven admitting that the language of the constitu-
    tion is not mandatory, and that congress may consti-
    tutionally omit to vest the judicial power in courts of
    the United States, it cannot be denied that when it is
    vested, it may be exercised to the utmost constitu-
    tional extent.

Martin v. Hunter’s Lessee, 14 U.S. 304, 330, 337 (1816).

   In legislation reflecting the passions of the Civil War, Con-
gress passed a law repudiating the Supreme Court’s interpre-
tation of a statute governing the return to its owner of
property seized by Union forces during the war. The Supreme
Court treated the attempt to curtail its jurisdiction as an
attempt to control its decisions:
                        IRONS v. CAREY                         2489
       The court is required to ascertain the existence of
    certain facts and thereupon to declare that its juris-
    diction on appeal has ceased, by dismissing the bill.
    What is this but to prescribe a rule for the decision
    of a cause in a particular way? . . . We are directed
    to dismiss the appeal, if we find that the judgment
    must be affirmed, because of a pardon granted to the
    intestate of the claimants. Can we do so without
    allowing one party to the controversy to decide it in
    its own favor? Can we do so without allowing that
    the legislature may prescribe rules of decision to the
    Judicial Department of the government in cases
    pending before it?

       We think not . . . .

United States v. Klein, 80 U.S. 128, 146 (1872).

   As recently as 1995, the Supreme Court held that a section
of the Securities Exchange Act, retroactively directing federal
courts to reopen final federal judgments, was invalid:

    Congress has exceeded its authority by requiring the
    federal courts to exercise “the judicial power of the
    United States,” U.S. Const., Art. III, § 1, in a manner
    repugnant to the text, structure, and traditions of
    Article III.

       ....

       . . . Article III establishes a “judicial department”
    with the “province and duty . . . to say what the law
    is” in particular cases and controversies. Marbury v.
    Madison, 5 U.S. 137, 1 Cranch 137, 177, 2 L. Ed. 60
    (1803). The record of history shows that the Framers
    crafted this charter of the judicial department with an
    expressed understanding that it gives the Federal
    Judiciary the power, not merely to rule on cases, but
2490                    IRONS v. CAREY
    to decide them, subject to review only by superior
    courts in the Article III hierarchy — with an under-
    standing, in short, that “a judgment conclusively
    resolves the case” because “a ‘judicial Power’ is one
    to render dispositive judgments.” Easterbrook, Presi-
    dential Review, 40 Case W. Res. L. Rev. 905, 926
    (1990).

Plaut v. Spendthrift Farm, 514 U.S. 211, 217-219 (1995)
(emphasis in original).

   Almost two centuries after Marbury, Chief Justice Mar-
shall’s reasoning was once more applied to invalidate an Act
of Congress that determined what acts violated the religious
freedom guaranteed by the First Amendment. Congress had
undertaken to enlarge the scope of this freedom beyond the
limits set by the Supreme Court. This legislative effort was
rebuffed:

    The power to interpret the Constitution in a case or
    controversy remains in the Judiciary.

       ....

       If Congress could define its own powers by alter-
    ing the Fourteenth Amendment’s meaning, no longer
    would the Constitution be “superior paramount law,
    unchangeable by ordinary means.” It would be “on
    a level with ordinary legislative acts, and, like other
    acts, . . . alterable when the legislature shall please
    to alter it.” Marbury v. Madison, 1 Cranch at 177.
    Under this approach, it is difficult to conceive of a
    principle that would limit congressional power. See
    Van Alstyne, The Failure of the Religious Freedom
    Restoration Act under Section 5 of the Fourteenth
    Amendment, 46 Duke L. J. 291, 292-303 (1996).
    Shifting legislative majorities could change the Con-
                         IRONS v. CAREY                      2491
    stitution and effectively circumvent the difficult and
    detailed amendment process contained in Article V.

       ....

       Our national experience teaches that the Constitu-
    tion is preserved best when each part of the govern-
    ment respects both the Constitution and the proper
    actions and determinations of the other branches.
    When the Court has interpreted the Constitution, it
    has acted within the province of the Judicial Branch,
    which embraces the duty to say what the law is.
    Marbury v. Madison, 1 Cranch at 177.

City of Boerne v. Flores, 521 U.S. 507, 524, 529, 535-36
(1997).

   With these precedents before my eyes, whatever doubts
they raise, whatever answer they suggest, I am bound by con-
trolling case law and so concur.



REINHARDT, Circuit Judge, concurring specially:

  I fully join in Judge Noonan’s sagacious concurrence.
Would that it were the law of the land. I add only a couple of
thoughts.

   After affording federal courts the power to issue writs of
habeas corpus in state cases, Congress tells us in AEDPA that
we may not grant relief to citizens who are being held in
prison in violation of their constitutional rights unless the con-
stitutional error that led to their unlawful conviction or sen-
tence is one that could not have been made by a reasonable
jurist. Whether it was reasonable for a state court to misappre-
hend the dictates of the Constitution in a particular case
hardly seems relevant to a citizen’s right not to be imprisoned
2492                          IRONS v. CAREY
in violation of the fundamental liberties he is granted by the
document that governs our societal structure. Nor is authoriz-
ing jurists to determine that a citizen’s detention is unlawful,
but that he must remain incarcerated because a magistrate’s
error is understandable, consistent with our duty as jurists to
enforce the laws and protect the rights of our citizens against
arbitrary state action.

   Having granted the courts the authority to review state con-
victions under our habeas powers, it seems to me inconsistent
with our fundamental obligations as judges to require us,
except in unusual or exceptional circumstances, to rule for the
state regardless of whether it violated the Constitution. Such
a mandate appears to me to tell us how to decide a case. That,
for the reasons Judge Noonan so well expresses, Congress
simply may not do.



FERNANDEZ, Circuit Judge, concurring:

  I concur in Judge Reinhardt’s opinion. I write separately for
two reasons.

   First, I am not satisfied that there was no reason to continue
to hold Irons in prison other than the circumstances of his cal-
lously senseless murder of another person for trivial reasons.
While his answer to whether he still had the rage that led him
to kill someone1 can easily be read in an innocuous manner,
  1
   The testimony went this way, in part:
         Attorney Schmidt [Irons’ attorney]: You gave the impression,
      in response to one of the questions, almost that if it wasn’t Mr.
      Nicholson [the victim], that it might have been somebody else
      ....
         Inmate Irons: Looking back on it, after the fact, I — now, I
      guess that those two questions relate to each other. Looking back,
      I realize that I was responsible. And in that sense, it could have
                            IRONS v. CAREY                          2493
it need not be, and the Commission could interpret it to mean
that he might. At any rate, I see nothing wrong with being
very, very cautious about releasing a person from prison and
onto society when he has committed the kind of crime that
Irons committed and has done it as flagitiously as he did it.
The Board has a right (nay, an obligation) to be exceedingly
cautious about setting him free.

   Second, Judge Noonan has issued a concurring opinion in
which he decries the fact that we (and, probably, the United
States Supreme Court) have deemed the AEDPA to be consti-
tutional. I do not join that, and its mere filing would elicit no
response from me but for the fact that Judge Reinhardt has
concurred in the concurrence. Because that means that two
members of the panel have joined that opinion, it might be
seen to indicate that the panel is speaking for the court and
that the court is, therefore, attacking itself. It might be thought
that we have found a new way to create an umbrageous, or
stealth, conflict in our jurisprudence, which district courts and
attorneys had better take into account. That, I know, is not the
intention of my colleagues, who have carefully crafted the
concurring opinion to indicate that, at least at this point, they
merely wish to express their strongly-held views about the
strictures of the AEDPA, without creating a conflict in the
law of this circuit.

    been somebody else. I mean, I don’t mean I was going to kill
    somebody at random, but the circumstances — some set of cir-
    cumstances that led me to that rage, I was primed for it. I was —
    I had let myself become that person who could kill and it could
    have been somebody else . . . .
      Attorney Schmidt: Do you have any of that rage now?
       Inmate Irons: I don’t think so. I try to make a real effort to
    examine my motives, to look inside of myself . . . . I — I think
    I’ve dealt with most of these issues. If they arise in some other
    way, I’ll look for the appropriate help.
2494                  IRONS v. CAREY
  Thus, I respectfully concur in Judge Reinhardt’s opinion
only.
