Posted by Orin Kerr:
Roper v. Weaver:
http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml#1179811888
Tuesday's flurry of opinions included a fascinating decision in
[1]Roper v. Weaver, a capital case that the Court apparently took to
correct a somewhat wacky application of AEDPA from the Eighth Circuit.
The case was briefed and argued, and on Tuesday the Court decided to
DIG the case -- dismiss it as improvidently granted -- because it
learned that it was only because of a strange procedural history that
the AEDPA statute applied at all. Indeed, in other similar cases,
including one involving the respondent's co-defendant, AEDPA didn't
apply and relief was granted. To avoid having to apply AEDPA -- and,
one assumes, to deny relief -- the Court decided to dismiss the writ
and let the Eighth Circuit decision stand to make sure that the
similar cases received similar results.
Justice Scalia, joined by Thomas and Alito, let'em have it in a
dissenting opinion. It's worth reading in full, but the conclusion is
particularly pointed:
A postscript is warranted in light of the unusual circumstances
in which we dispose of this case. The greatest harm done by today's
cancellation is not to the State of Missouri, which will have to
retry this murder case almost two decades after the original trial
�- though that is harm enough. The greatest harm is that done to
AEDPA, since dismissing the writ of certiorari leaves the Eighth
Circuit's grossly erroneous precedent on the books. (That
precedent, by the way, cannot be explained away -- as perhaps the
Court's own opinion can -- as the product of law-distorting
compassion for a defendant wronged by a District Court's erroneous
action. As noted earlier, the Eighth Circuit was not informed of
that erroneous action. It presumably really believes that this is
the way AEDPA should be applied.) Other courts should be warned
that this Court's failure to reverse the Eighth Circuit's decision
is a rare manifestation of judicial clemency unrestrained by law.
They would be well advised to do unto the Eighth Circuit's decision
just what it did unto AEDPA: ignore it.
For the foregoing reasons, I respectfully dissent.
References
1. http://supremecourtus.gov/opinions/06pdf/06-313.pdf
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