Replies

I’ll say about Roberts just about what I said about Wayne Gretzky after he was in the NHL 1-2 years: If this man lasts ten years or more in this profession, he will go down as the Greatest - but in Roberts’ case I’ll say “one of the Greatest”.

From this dissent, which is AWESOME to read:
-—>>>>

“The convictions were upheld upon direct review...

“This Court had considered similar challenges to the SAME instructions no fewer than five times ... only one ... upheld it. ... Indeed, [in later cases] every one of the remaining Justices who had been in [that] majority [dissented in a later case] on the ground that the Court was failing to adhere to [it].

“We give ourselves far too much credit in claiming ... that our ebbing and flowing decisions in this area give rise to “clearly established” federal law. ... instead a dog’s breakfast” of dividing, conflicting and ever-changing analyses. ... as [the Justices on this Court] shifted from being in the majority, plurality, concurrence, or dissent from case to case, repeatingly 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 1987 [case]... Court begins by stating that the principle the state court violated was “firmly established”... the only thing clear ... on the pertinent question ... however, is that it was unsettled and confused. ... [leaving] open the possibility that mitigating evidence might not be within the reach of the jury...

“The next occasion was ... A plurality of the Court ... rejected the argument that a jury must be permitted to give “independent” effect to mitigating evidence...

“The Court today places great weight on a [2-Justice] opinion ... express[ing] “doubts” about the plurality view that mitigating evidence need not be given effect ...

“According to the Court today, a discerning state judge should have seen that federal law was “clearly established” on the point by [those] concurring and dissenting opinions, not the plurality[!]...

“A state court looking at our pertinent precedents ... would next have to consider the significance of ... [in which] the four dissenters ... -— including the author of today’s opinion -— complained that the majority’s discussion ... was “strangely reminiscent” of the position of [that case’s] dissenters. [[[ LOL ... sorry ]]]

“... three years later, the Court sought to clarify ... [big paragraph] ... Thus, ... the Court rejected the reading ... that the Court today endorses ...

[much later]”In short, [LOL] a state court reading our opinions would see an ongoing debate over the meaning and significance ... [and] It is in this context that the Court today tells us that the state courts should have regarded [case] as “clearly established Federal law, as determined by the Supreme Court of the United States.”

“... I do not understand how the author of today’s opinion can say that [case] did not disturb the principle of [other case] ... {sorry ... too convoluted for me to simplify] when he joined in a dissent in Graham stating that ‘[Graham’s] position is identical to that of Penry” and that Graham’s case “is controlled by Penry”. That seems to suggest that Graham was inconsistent with Penry. I do not understand how the author of today’s opinion can say that [case] had no effect ... when he joined a dissent ... [which is now] dismissed as just an application of “our basic legal principle[s]” which Justices can disagree; [when] back then it “upset our settled Eighth Amendment jurisprudence.” And what of [other case]!? There the author of today’s opinion joined a dissent claiming the majority was adopting the rule rejected in Penry!

“In fact, Penry is not even consistent with the reading the Court [today] ascribes to it -

“As might be expected in the light of the foregoing, judges called upon to apply these precedents were confused by the ambiguity of this Court’s pronouncements. See [...]

“It is a familiar adage that history is written by the victors, but it goes too far to claim ... “clearly established” ... [much later] ... The state court’s approach to this question was plainly correct; ... [and] In reaching today’s result, the Court also takes advantage of eight years of hindsight and relies on three cases that postdate the state court’s ruling. ... AEDPA requires state courts to reasonably apply clearly established federal law. It does not require them to have a crystal ball.

[much later... conclusion]”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 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.