By Alexandr Satanovsky
Today's Supreme Court order list contained two written opinions by Justice Alito. The first was his Statement Respecting Denial of Certiorari in the non-habeas civil case of Martin v. Blessing, the second was his dissent from the denial of certiorari in the Sixth Circuit's Rapelje v. McClellan.
Notably, in the former non-habeas case, Justice Alito concludes by emphasizing that he "do[es] not disagree with the Court’s refusal to review" because "we are not a court of error correction[.]" Indeed, Alito's unremarkable proposition tracks Supreme Court Rule 10, which outlines the "considerations" in whether to grant cert., noting that "misapplication of a properly stated rule of law" is of lowest priority. Ironically, in the very next page in today's order--the first page of Justice Alito's dissent in McClellan--he faults the Sixth Circuit for its "serious misreading" of Richter, and faults the Court for leaving the decision "uncorrected." He concludes that he would "grant the petition and vacate the decision below because the Sixth Circuit made a severe error of federal law."
So the question that should be resolved is whether and under what circumstances can the Supreme Court act as a court of error correction? If practice is an indicator, error correction is often appropriate provided that the petition is from a decision of a federal appellate court, preferrably the Sixth or Ninth Circuit, that erroneously grants federal habeas relief. It would just be really nice if this practice was codified, perhaps by a formal amendment to Rule 10.