PHOTOGRAPH BY WIN MCNAMEE / GETTY

The Anti-Terrorism and Effective Death Penalty Act of 1996 (A.E.D.P.A.) is surely one of the worst statutes ever passed by Congress and signed into law by a President. The heart of the law is a provision saying that, even when a state court misapplies the Constitution, a defendant cannot necessarily have his day in federal court. Instead, he must prove that the state court’s decision was “contrary to” what the Supreme Court has determined is “clearly established federal law,” or that the decision was “an unreasonable application of” it.

This law gutted the federal writ of habeas corpus, which a federal court can use to order the release of someone wrongly imprisoned. It is often called the Great Writ because of its extraordinary power to protect the liberty of individuals. In the nineteen-sixties, the Supreme Court expanded the law of habeas corpus as a protection against the unfair treatment of defendants at every stage of the criminal process, from arrest and interrogation through trial and sentencing, especially in cases leading to death sentences. This expansion was controversial and, under Chief Justice William H. Rehnquist, the Court later restricted the availability of the writ. But the protection that the writ gave, even when it was limited, was indispensable. A dramatically high percentage of individuals sentenced to death had their sentences reversed owing to errors by trial courts.

A landmark Columbia Law School study of virtually every state and federal death-penalty appeal from 1973 to 1995 reported that “courts found serious, reversible error in nearly 7 of every 10 of the thousands of capital sentences that were fully reviewed during the period.” There were so many mistakes, the study found, that after “state courts threw out 47% of death sentences due to serious flaws, a later federal review found ‘serious error’—error undermining the reliability of the outcome—in 40% of the remaining sentences.” Without federal habeas corpus, those serious errors would have gone unchecked. Instead of later being found not to deserve the death penalty, as happened in seventy-three per cent of the cases, or instead of being found innocent, as happened in nine per cent of the cases, these defendants likely would have been put to death.

When A.E.D.P.A. became law, it fell like an “atomic bomb” on the federal judiciary and the “structure of habeas corpus law,” according to “Federal Habeas Corpus Practice and Procedure,” the leading treatise by Randy Hertz and James S. Liebman. Of the seventy or so cases in which the Justices have interpreted the statute, there are some in which a defendant seeking a new trial through a writ of habeas corpus has prevailed, but they are in the minority. The Court’s A.E.D.P.A. jurisprudence is basically made up of decisions in which the Justices have increasingly narrowed the chances of review under the statute.

As a result of A.E.D.P.A., and the Court’s interpretation of it, Liebman and a colleague estimate, the reversal rate of state courts in death penalty cases has been reduced by about forty per cent. There is no reason to believe that state courts have improved in the past two decades, which would have been a factor in the decline. That forty-per-cent decline translates into a failure to catch many serious errors in cases where individuals did not deserve the death penalty—and some serious errors in cases where individuals were, very likely, innocent.

More than a third of the Supreme Court’s A.E.D.P.A. cases have come from the Ninth Circuit Court of Appeals (which covers the Western states, Alaska, Hawaii, Guam, and the Northern Mariana Islands). The Supreme Court’s decisions in these cases are regularly reprimands, which have sometimes appeared to be directed at one judge, Stephen Reinhardt, a prominent liberal who has been on the Ninth Circuit for thirty-five years. Before this Supreme Court term, Reinhardt, who is one of forty-four judges on the court, wrote the majority opinion in five of the twenty-five Ninth Circuit cases the Court reviewed and took part in ten.

Last week, the Supreme Court overturned another Ninth Circuit decision, again written by Reinhardt, calling for the retrial or release of a California inmate on death row. Twenty-six years ago, a California state court convicted Hector Ayala of murdering three men during the armed robbery of an auto-repair shop. The court sentenced him to death. The prosecution had struck each of the seven black or Hispanic people available in the pool of more than two hundred prospective jurors, apparently to keep members of those groups from serving in the trial of Ayala, who is Hispanic. Ayala’s counsel charged that the strikes amounted to racial discrimination. The trial judge asked the prosecution to justify each strike in a private hearing, without Ayala’s counsel present. The judge accepted those justifications without providing them to Ayala’s counsel, which made it impossible for the defense team to respond.

The California Supreme Court held that the trial court had acted in error, but that the error had no effect on the outcome of the case. In the law’s vocabulary, the error was “harmless.” A federal trial judge affirmed that view and denied Ayala’s petition for a writ of habeas corpus. The Ninth Circuit, however, overruled that decision, holding that Ayala was entitled to have his petition granted. It found that the state trial judge had seriously reduced Ayala’s ability to win his claim that racial discrimination in jury selection influenced the outcome of his trial.

On Thursday, the Supreme Court ruled as close observers of the court have come to expect. With Justice Samuel A. Alito, Jr. writing the majority opinion for the conservatives and Justice Sonia Sotomayor writing a dissent for the moderate liberals, the Supreme Court held that “the decision of the California Supreme Court represented an entirely reasonable application of controlling precedent.”

Unusually, however, Judge Reinhardt had something to say about it. In an article published in the current issue of the Michigan Law Review, Reinhardt made clear that the disagreement in the Ayala case is not between one side arguing for safeguarding a prisoner’s constitutional rights and the other insisting on respect for the state’s criminal-justice process. Rather, it is about a callous, well-developed body of Supreme Court law interpreting A.E.D.P.A. and how much deference— submission, really—to that process the Court’s habeas jurisprudence requires.

While A.E.D.P.A. was “misconceived at its inception,” Reinhardt writes, the “deeply conservative” Supreme Court has “repeatedly interpreted it in the most inflexible and unyielding manner possible” so that “constitutional rulings by state courts” are “nearly unreviewable by the federal judiciary.” The appeals courts, including the Ninth Circuit, “dutifully follow the existing Supreme Court law.” The Court “often reverses us not for failing to apply the law it has previously enunciated, but by creating new, previously undeclared, and extreme rules that serve to limit the ability of federal courts to enforce the rights embodied in the Constitution.”

The new rule created in Davis v. Ayala is particularly unjust, as the Sotomayor dissent explained. The adversary system is built on the premise that a court is most likely to discover the truth when it hears from both sides—and “that secret decisions based on only one side of the story will prove inaccurate more often than those made after hearing from both sides,” as Chief Justice John G. Roberts, Jr. wrote in an opinion last year.

By keeping Ayala’s counsel out of the hearing about the striking of black and Hispanic jurors, the state trial judge prevented the counsel from making compelling arguments about why some, or all, of those strikes were discriminatory. Under those circumstances, it was impossible for a court reviewing the case to be confident the error was harmless. Supreme Court precedents, which the Ninth Circuit followed, required treating the error as harmful—until the Court created the extreme rule in this case.

The Ayala case is one of the rare instances where the federal courts, including the Supreme Court, had the opportunity to hold a state prosecutor to account for using trumped-up reasons to justify racial discrimination in a jury selection. This happens frequently in American criminal cases (as Gilad Edelman explained earlier this month), and it is a national disgrace.

But the demise of habeas corpus is equally disgraceful. As Reinhardt writes in his law-review article, the Great Writ “has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution.”