That is the counter-intuitive holding from yesterday's Supreme Court decision in Berghuis v. Thompkins (available here; I recommend the SCOTUSblog recap). It is so absurd that it had the news anchor on my local WB station mocking it.* I have always found that local news stations never mock anything that's pro-police.
*At the same time, I am not quite sure whether that particular newscast should mock anything. As the anchor discussed the case, the newscast showed a montage of images which included video footage of the Supreme Court Justices from 1989(!) (it was unbelievable - the video showed Rehnquist, Marshall, White, O'Connor, Blackmun and Brennan; who's doing the editing around there?). I guess it was just a lot of absurdity all the way around.
My initial reaction to the decision was, wait, isn't this habeas case? How can the Supreme Court make new law in a habeas case? What happened to the deferential standard that Scalia and Thomas think is the greatest legal concept since sovereign immunity?
So I was happy to see that Sotomayor nailed it in her dissent. In her opening paragraph, she stated, "The broad rules the Court announces today are also troubling because they are unnecessary to decide this case, which is governed by the deferential standard of review set forth in the [AEDPA]." Precisely. If the majority wanted to deny habeas, all it had to do was somehow say that the state court decision was not an unreasonable application of clearly established law and leave it at that without establishing a new legal principle.
But what it suggests, at least from a quasi-conspiratorial point of view, is that maybe the clearly established law was so far in petitioner's favor that the majority couldn't honestly do that. Sotomayor in her dissent makes a pretty strong case that the clearly established law was indubitably in petitioner's favor, at least with respect to whether petitioner waived his right to be silent. In fact, she states, "Rarely do this Court's precedents provide clearly established law so closely on point with the facts of a particular case." That's a pretty strong statement.
So if the clearly established law is clearly on petitioner's side, what can Supreme Court justices do if they desperately want to deny a petition? Well, apparently, now they can simply change the clearly established law so that petitioner can't win. In my mind, that's the biggest problem with Thompkins. At least in habeasland. The Supreme Court has now shown that it believes it has the power to make bad substantive law in order to deny a petition. Of course, it is terribly unfair -- the AEDPA specifically prevents the federal courts from creating good substantive law in order to grant a petition. But the Supreme Court believes it has the power to do the converse. Hopefully, I am reading too much into this.
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