The Supreme Court today issued three opinions in Texas death cases. All were 5-4 in favor of the death-sentenced petitioner. In each case, the 5-justice majority consisted of Justices Stevens, Kennedy, Souter, Ginsburg and Breyer.
Two of the cases (Brewerman v. Quarterman and Abdul-Kabir v. Quarterman, argued together) involved habeas petitions and presented the question whether, under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), federal law was “clearly established” by the Supreme Court when the state courts acted. The majority opinions, written by Justice Stevens, answer yes. Here are some choice excerpts from Chief Justice Roberts’s joint dissent in the two cases, joined by Justices Scalia, Thomas, and Alito. (For ease of reading, I have omitted some citations.)
We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to “clearly established” federal law. If the law were indeed clearly established by our decisions “as of the time of the relevant state-court decision,” it should not take the Court more than a dozen pages of close analysis of plurality, concurring, and even dissenting opinions to explain what that “clearly established” law was. When the state courts considered these cases, our precedents did not provide them with “clearly established” law, but instead a dog’s breakfast of divided, conflicting, and ever-changing analyses. That is how the Justices on this Court viewed the matter, as they shifted from being in the majority, plurality, concurrence, or dissent from case to case, repeatedly lamenting the failure of their colleagues to follow a consistent path. Whatever the law may be today, the Court’s ruling that ’twas always so–and that state courts were “objectively unreasonable” not to know it–is utterly revisionist….
In today’s decisions, the Court trivializes AEDPA’s requirements and overturns decades-old sentences on the ground that they were contrary to clearly established federal law at the time–even though the same Justices who form the majority today were complaining at that time that this Court was changing that “clearly established” law.
Still, perhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented “clearly established” federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc. Encouraged by the majority’s determination that the future can change the past, I respectfully dissent.