Stephen I. Vladeck (American University Washington College of Law) has posted AEPDA, Saucier, and the Stronger Case for Rights-First Constitutional Adjudication (Seattle University Law Review, Vol. 32, p. 595, 2009) on SSRN. Here is the abstract:
As part of a symposium on new affirmative visions of the judicial role, this essay takes on the Supreme Court's increasing unwillingness to resolve constitutional questions in post-conviction habeas cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), as seen in decisions such as Wright v. Van Patten, 128 S. Ct. 743 (2008). In most cases in which AEDPA applies, a petitioner is only eligible for relief if a state court's constitutional error was "unreasonable" based on prior Supreme Court decisions (and not dicta). As a result, the Court has repeatedly concluded that a state court did not act unreasonably without deciding whether it committed error, leaving the law unsettled -- perhaps indefinitely.
In a comparable line of cases under the qualified immunity doctrine, the Supreme Court had, for a time, endorsed a rigid order-of-battle pursuant to which reviewing courts must reach the "rights" question first. Although the rule of Saucier v. Katz was abandoned earlier this Term in Pearson v. Callahan, this essay suggests that the so-called "Saucier sequence" might make even more sense in the context of post-conviction habeas petitions under AEDPA, a context in which Saucier's many shortcomings hold far less water.