Update: I edited this a little for clarity. And I completely forgot to include the "Oh Boy" video. I can't believe I neglected to do that, considering that's why I used "Oh Boy" in the title. That's now at the bottom of the post.
Today, the Supreme Court issued another per curiam summary reversal. It was in the previous relisted case of Bobby v. Dixon. Unlike last week's, this one is unanimous.
But this one is causing me a great deal of concern. I have previously written how I believe that the decision from last term in Harrington v. Richter was a game changer. Here is where we see just how profound that impact is. But it's not necessarily in the result in this case. It's hard to say that Richter was outcome determinative in this summary reversal. It looks as if the Sixth Circuit didn't do a great job justifying their opinion.
But the language that the Court uses here builds upon Richter in a really troubling way. As we all know by now, in order to get relief under 2254(d)(1), a petitioner must show that the state court's decision was an "unreasonable" application of clearly established law. Although the Court had previously stated that "unreasonable" was difficult to quantify and qualify, the Court last term in Richter changed that and gave it a precise meaning. To show that something is "unreasonable" a petitioner must show "that the state court’s ruling onthe claim being presented in federal court was so lackingin justification that there was an error well understoodand comprehended in existing law beyond any possibility for fairminded disagreement." When I read this, it felt to me like this standard was nearly impossible to meet.
And now the entire Supreme Court -- and I mean all 9 judges -- is saying just that. The Court says that, to meet this standard, the state court's error must be "grievous."
Definition of grievous: flagrant; outrageous; atrocious.
Synonyms (from same link): deplorable, lamentable, calamitous, heinous, flagitious, dreadful, shameful, iniquitous.
Later, the Court says that the state court's error must be "egregious."
Definition of egregious: extraordinary in some bad way; glaring; flagrant.
Synonyms (from same link): gross, outrageous, notorious.
I wish I was making a joke here, but what happened to "unreasonable"? Grievous and egregious? They are not even synonyms for unreasonable. It's a step up from unreasonable.
That's the impact of that new standard in Richter. It has moved the needle so far to the right that the showing is no longer "unreasonable." The burdensome Richter standard has created the space for the Court to use descriptive words that go beyond "unreasonable." Now, a petitioner must show that the state court's decision was extraordinarily or outrageously bad. Of course, that is not what the statute says. But, unfortunately, that is now the test. Just mindblowing to me.
Really, here is the new standard:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted . . . unless the adjudication of the claim -
(1) resulted in a decision that was an outrageously or extraordinarily wrong application of clearly established Federal law as determined by the Supreme Court of the United States . . .
Not quire sure what comes next. Seriously, what adjective is worse than "grievous" or "egregious"? Actually, wait, don't answer that question. I am worred that the Court will consider using it in the next summary reversal.
Update: Here's the "Oh Boy" video. It captures my sentiments here: