AEDPA, capital habeas cases and the limits of change

Two events this morning have me thinking about federal habeas review in state capital cases and about the (limited?) potential for a new administration to impact these issue:

1.  The Supreme Court this morning is hearing argument in Bell v. Kelly(SCOTUSwiki description here), which is an important concerning standards of review under AEDPA.  This NACDL amicus brief explains effectively what may be at issue in Bell v. Kelly:

[This] case squarely presents the Court with an opportunity to address the relationship between minimal procedural fairness and the comity and federalism concerns embodied by the Anti-Terrorism and Effective Death Penalty Act (AEDPA).... The way in which the Court decides this case will influence whether state postconviction courts believe they are required to provide a minimally fair process in order for their decisions to be steeled from federal review by the provisions of the AEDPA.

2.  A split panel of the Sixth Circuit today in Davie v. Mitchell issued three separate opinions in the course of affirming an Ohio death sentence on federal habeas review.  At the start of his lengthy dissent, Judge Merritt minces no words about his view of the outcome:

The majority in this case is reading the AEDPA statute unlawfully to suspend the writ of habeas corpus in violation of the Suspension Clause of the United States Constitution, Article I, § 9 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”).  Here, as I shall explain below, the majority is using the AEDPA statute as a license to overrule Miranda v. Arizona and its lineal progeny developed by the Warren-Brennan Court four decades ago to outlaw coerced confessions that abridge the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination.

As habeas gurus know, the federal jurisprudence surrounding state capital habeas review has been a mess for decades.  AEPDA was enacted during the Clinton Administration as part of a bipartisan effort to clean up this mess, but arguably AEDPA has only made the mess a lot worse.  Indeed, today's SCOTUS oral argument and Sixth Circuit ruling spotlight the general inability of AEDPA to make this arena of habeas law and policy less messy.

Though surely not a high priority matter for the Obama team, I like to imagine that a new administration might eventually consider some changed approaches to old habeas issue.  But, in the wake of the AEDPA experience, I am not optimistic about the potential for real change.  In other words, I fear that, even if a new administration is willing and eager to "improve" AEDPA and the messy jurisprudence that surrounds capital habeas review, it may be very difficult to do significantly better than the status quo (at least absent a serious commitment to reconstructing radically federal involvement in state capital cases).