2016—In Currie v. McDowell, a liberal Ninth Circuit panel majority rules that a California appellate court violated “clearly established federal law,” supposedly established by a 2005 Supreme Court case, when it denied a convict’s claim that a prosecutor had wrongly excluded a prospective juror. On that basis, Judge Marsha Berson, joined by Judge William Fletcher, determines that the deference to state-court decisions generally required by the 1996 federal law known as AEDPA does not apply, and it grants the convict’s habeas petition.
But as Judge Carlos Bea argues in dissent, the 2005 case did “not spell out [the] rule” that the majority assigns to it. Ninth Circuit cases did, but “[w]e have been repeatedly reminded by the Supreme Court not to treat our own precedent as Supreme Court law” for purposes of AEDPA’s standard (“clearly established Federal law, as determined by the Supreme Court”). “We do not speak for the Supreme Court, even when we say the same thing twice.”