Linda Greenhouse recounts the rushed enactment of AEDPA shortly after the Oklahoma City Bombing.

But within weeks of the Oklahoma City bombing, the Senate voted 91 to 8 to pass the Comprehensive Terrorism Protection Act of 1995, which cut back sharply on state death-row inmates’ access to federal court. This bill eventually morphed into the broader Anti-Terrorism and Effective Death Penalty Act of 1996, which President Clinton signed shortly after the first anniversary of the bombing. Standing on the south lawn of the White House, in the presence of family members of the victims of Oklahoma City and other recent terrorist incidents, the president declared that the new law “strikes a mighty blow” against terrorism.

While I can’t think of any particular impact the law (abbreviated as AEDPA and pronounced “edpa,”) has had on terrorism, it has transformed habeas corpus practice for garden-variety crimes. Its restrictions on the jurisdiction of the federal courts were sufficiently severe that the Chief Justice William H. Rehnquist and his most conservative allies felt the need to act with remarkable speed to affirm the law’s constitutionality.

We might add this to the list of Black Swan Legislation. Unsurprisingly, this massive law, rushed into existence shortly after a largely unavoidable tragedy with popular support failed to solve the problem it aimed to solve (stopping terrorism; see 9/11), yet resulted in a number of other unintended consequences (totally turning federal habeas law into a mess).

Greenhouse recounts Felker v. Turpin, where the Court on very short notice had to consider whether AEDPA resulted in a suspension of Habeas (4 Justices wrote that the Court intervened with”unseemly haste”).

In May 1996, just nine days after AEDPA was signed into law, and after the court’s regular argument sessions for the term had concluded, the justices scheduled a special sitting to hear a case on whether the law’s all-but-total elimination of an inmate’s right to file more than one habeas corpus petition amounted to an unconstitutional “suspension” of habeas corpus.

Four dissenting justices (John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer) objected that the court was intervening with “unseemly haste.” But less than a month after the June 3 argument in the case, Felker v. Turpin the court ruled unanimously that the new restrictions were permissible because, despite the obstacles placed on access to the lower federal courts, the Supreme Court itself retained the right to exercise its own authority to grant an “original” habeas corpus petition.

Greenhouse notes other unintended consequences of AEDPA, including the “contrary to  . . . clearly established law cases” and stringent immigration penalties that had little to do with Oklahoma City, and would do little to prevent the next big terrorist attack (again, see 9/11).

AEDPA also had a drastic effect on the rights of legal immigrants, making non-citizens who had lived legally in the United States for years suddenly subject to automatic deportation for minor offenses. Given that Timothy McVeigh and his co-defendant, Terry Nichols, were American-born, the connection between this provision and Oklahoma City – or terrorism in general – remains obscure.

Precisely. A massive piece of legislation, enacted in a popular groundswell of support following a tragedy, that will do absolutely nothing to prevent the original tragedy.

I recount a story from my Habeas class about AEDPA:

Once in class, I commented that some case construed the Anti-Terrorism and Effective Death Penalty Act (AEDPA) improperly. I noted that the Court’s interpretation made it really really tough to impose the death penalty, so the case went against the congressional purpose of making the death penalty effective. I don’t think I really bought the argument, but it was the best I could come up with. I recall the Professor told me that it is a poor cannon of construction to look at the title of a statute to find purpose. Huzzah! Vindicated by SCOTUS!