Bench Memos

NRO’s home for judicial news and analysis.

Feddie and Me


My article on incest here at NRO has occasioned a response by “Feddie” over at the blog Southern Appeal. Feddie says he doesn’t like the “tenor” of my criticism of Judge Manion, for whom he once clerked. But I vouched explicitly for the competence, honesty, and legal acumen of the good judge in the article itself, so I don’t know where that complaint comes from.

More to the point, Feddie and one of his readers take me to task for not acknowledging in my article that the Muth case was a review of a habeas corpus petition. It is true that I did not burden ordinary readers with a point so arcane, since it was entirely immaterial to the argument I was making. Readers uninterested in the nerdier aspects of federal appellate law can stop reading at this point.

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which among other things attempted to rein in federal courts that had run too far in habeas corpus review of state criminal convictions. Judge Manion’s opinion read AEDPA as requiring the circuit court to consider whether the Lawrence ruling was to be applied retroactively, since Allen Muth had been convicted of the crime of incest, and had had all his appeals in Wisconsin courts, before Lawrence was decided in the summer of 2003. Manion and his colleagues held that because Lawrence announced a “new substantive rule” of constitutional law and not merely a new procedural holding that a state court could in good faith have dispensed with beforehand, it was “thus retroactive.” In short, Muth was held to have passed every hurdle in the way of unbridled adjudication on the constitutional merits that Congress legislated in AEDPA.

In the last analysis, this simply means that for Judge Manion, Lawrence was the relevant precedent for deciding Muth’s case, and “the ultimate question then” was “whether Muth is a beneficiary of the rule Lawrence announced,” no more and no less. All the business about this being a habeas case mattered in the end not at all, but was just a lengthy throat-clearing operation. The circuit panel went fully to the constitutional merits on this case, and its opinion on that score was what my article was about.

On another point, I’ll take this opportunity to thank Gerry Bradley for his kind words about the article.


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