dissenting:
I dissent. I join the dissenting opinion of Judge Wardlaw, because (1) the “judgment” in this case embodies prospective relief — as the district court and the parties well understood over the years — making the constitutional question ripe for decision, and (2) the termination provision of the Prison Litigation Reform Act of 1995, 18 U.S.C. § 3626(b)(2), is constitutional in limiting prospective relief. I write separately to address an additional flaw in Judge Rymer’s analysis: her inclusion of Part 11(B).
When a majority opinion holds, as this one does, that our court lacks a proper opportunity to decide a legal issue that the parties attempt to present, a dissenter has two choices. She can limit her disagreement to the question of our court’s authority, or she can go on to describe how she would resolve the substantive issue that, in her view, the court has authority to decide. The dissenter’s choice of the latter style grants no license to the author of the majority opinion to include dictum on the substantive issue. Such dictum dilutes the message that the bench and bar should be receiving: that the substantive issue remains unresolved as a matter of law.