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.

Congress does not have the power to determine how a federal 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 jurisdiction 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 nonetheless mistaken. Eu *666 clidean 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. Impermissi-bly it mixes the two branches. It does so to the great detriment of the judicial branch which is 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 ease 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, 529 U.S. 362, 412 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000), Justice O’Connor glossed “clearly established” to mean a holding by the Supreme Court, not a dictum. Justice 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. Williams, 529 U.S. at 413 , 120 S.Ct. 1495 (O’Connor, J., concurring). It is a dictum that has banished dicta from the grounds for granting habeas corpus. It is a dictum necessarily narrowing the *667 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 determined 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 cannot be imagined — law, particularly constitutional law — is treated as what once was the law. The development of doctrine is despised. That despi-sal is a direct legislative interference in the independence of the judiciary.

It could be said that the ban on using Supreme Court decisions 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 , 85 S.Ct. 1731 , 14 L.Ed.2d 601 (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 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 jurisdiction: 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 Constitution of the United States. That oath has always been understood to mean the Constitution as it is interpreted by the courts. It is, of course, a grade school fiction that the Constitution 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 circuit 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.

*668 As every law school student knows, Marbury v. Madison, 5 U.S. 137 , 1 Cranch 137 , 2 L.Ed. 60 (1803), held unconstitutional an Act of Congress that attempted to confer jurisdiction on the Supreme Court. Writing for the unanimous court, Chief Justice Marshall declared:

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

These general and fundamental propositions were established near the beginning of our country. They were set out in a case involving congressional meddling with the constitution’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:

Martin v. Hunter’s Lessee, 1 Wheat. 304 , 14 U.S. 304, 330, 337 , 4 L.Ed. 97 (1816).

In legislation reflecting the passions of the Civil War, Congress passed a law repudiating the Supreme Court’s interpretation 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:

United States v. Klein, 18 Wall. 128 , 80 U.S. 128, 146 , 20 L.Ed. 519 (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:

Plaut v. Spendthrift Farm, 514 U.S. 211, 217-219 , 115 S.Ct. 1447 , 131 L.Ed.2d 328 (1995) (emphasis in original).

Almost two centuries after Marbury , Chief Justice Marshall’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:

City of Boerne v. Flores, 521 U.S. 507, 524, 529, 535-36 , 117 S.Ct. 2157 , 138 L.Ed.2d 624 (1997).

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