SUPREME COURT OF THE UNITED STATES
BRENDA EVERS ANDREW
v. TAMIKA WHITE,
WARDEN
on petition for writ of certiorari to the
united states court of appeals for the tenth circuit
No. 23–6573. Decided January 21, 2025
Justice Thomas, with whom Justice Gorsuch
joins, dissenting.
Our precedent under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) establishes several
rules for identifying clearly established federal law. 28
U. S. C. §2254(d)(1). We have instructed lower courts to
avoid framing our precedents at too high a level of generality; to
carefully distinguish holdings from dicta; and to refrain from
treating reserved questions as though they have already been
answered. The Tenth Circuit followed these rules. The Court today
does not. Instead, it summarily vacates the opinion below for
failing to elevate to “clearly established” law the broadest
possible interpretation of a one-sentence aside in
Payne v.
Tennessee,
501 U.S.
808 (1991). In doing so, the Court blows past
Estelle v.
McGuire,
502 U.S.
62 (1991), which, months after
Payne, reserved the very
question that the Court says
Payne resolved. And, worst of
all, it redefines “clearly established” law to include debatable
interpretations of our precedent. It is this Court, and not the
Tenth Circuit, that has deviated from settled law. I respectfully
dissent.
I
The Court’s errors begin with its recitation
of the facts. Contrary to the majority’s insinuations, the State
presented “overwhelming evidence” that Andrew participated in the
murder of her husband. See
Andrew v.
State, 2007 OK
CR 23, ¶56,
164 P.3d 176, 192; accord,
id., at 207 (A. Johnson, J.,
concurring in result in part and dissenting in part). In fact, the
State presented an “unusually strong evidentiary case, which leaves
little or no doubt that [Andrew] is guilty of the crimes charged,
crimes committed after methodical planning.”
Id., at 206
(Lumpkin, P. J., concurring in result). The Court inaccurately
portrays the State’s evidence, the prosecution’s closing arguments,
and the reasoning of the Oklahoma Court of Criminal Appeals
(OCCA).
A
Brenda Andrew (Andrew) married Robert Andrew
(Rob) in 1984. In February 2000, Rob purchased an $800,000 life
insurance policy through agent Jim Pavatt, with Andrew as the
beneficiary. The Andrews and Pavatt attended the same church.
Pavatt and Andrew both served as Sunday school teachers. But, by
August 2001, they had begun an affair. The affair caused the
Andrews’ already strained marriage to reach a breaking point.
Around late September Andrew initiated divorce proceedings and told
Rob to move out of the house.
One morning in October, Rob discovered that
someone had cut the brake lines in his car. Several hours later, he
received phone calls from two unknown callers—one of whom turned
out to be Pavatt’s adult daughter, Janna Larson—falsely claiming
that Andrew was in the hospital and urgently needed him. Phone
records reveal that Pavatt and Andrew exchanged 82 phone calls that
day and more than 50 calls the next day. The next day, Andrew told
Rob she had read in the newspaper about his brake lines being cut,
but no such news story existed. And, around this time, Pavatt told
Larson that Andrew had asked him to kill Rob. Pavatt later
threatened to kill her if she ever revealed this information.
After the brake-line incident, Rob sought to
remove Andrew as the beneficiary of his life insurance policy,
explaining to another insurance agent that he thought Pavatt and
Andrew were trying to kill him. But, Andrew and Pavatt resorted to
fraud to try to prevent this from happening, forging Rob’s
signature on a form transferring ownership of the policy to Andrew.
The policy then became a serious point of contention in the divorce
proceedings, even though Rob was only 38 years old and healthy.
The Andrews had two young children who, after
their separation, continued to live with Andrew in the former
family home. Rob would sometimes meet them outside the house and
take them for visitation.
When Rob came to pick up the children for the
Thanksgiving holiday, however, Andrew asked him to come into the
garage to help her light the pilot light of her furnace. As he
started to do so, someone pointed a 16-gauge shotgun at him from
across the garage. Seeing this, Rob turned and grabbed a trash bag
filled with aluminum cans, apparently in a desperate attempt to
protect himself. The perpetrator shot him through the bag.
Reloading the shotgun, the perpetrator (or an accomplice) then
moved within three feet of Rob, and shot him a second time as he
lay on the floor. Andrew was also shot with a .22-caliber weapon,
but suffered only a superficial wound on her arm.
Andrew called 911 after the shootings, claiming
that two masked men had come into the garage and attacked her and
Rob. She related on the call that Rob was still conscious and
trying to speak. By the time emergency responders arrived, however,
he was dead. During the shootings, the children were in the master
bedroom watching television with the volume turned up high, unaware
of what was happening in the garage. An ambulance then took Andrew
to the hospital, where witnesses described her demeanor as
unusually calm.
Police discovered substantial evidence linking
Andrew and Pavatt to the murder. Rob owned a 16-gauge shotgun, but
had told friends that Andrew refused to let him take it with him
when he moved out. One witness testified that, eight days before
the murder, he had seen Andrew in a rural area commonly used for
target practice. The witness also said that later he found 16-gauge
shotgun shells at the site. Pavatt owned a .22-caliber handgun,
which he had purchased about a week before the murder. The day of
the murder, he borrowed Larson’s car, claiming he would get it
serviced for her. When he returned it the following day, she
noticed the car had not been serviced. And, she found a .22-caliber
shell on the floorboard of her car.
Forensic evidence also undermined Andrew’s
account that she had been shot at a distance. Powder burns on her
clothes and body revealed the shot had been fired within two inches
of her arm. An expert witness later testified that Andrew’s
injury—a superficial, close-range gunshot wound—was staged to make
it look as if she had been a victim of the attack and thereby avoid
suspicion.
The Andrews’ neighbors were out of town on the
day of the murder. When they returned, they found suspicious items
in their home and contacted the police. Police discovered that
someone had left a 16-gauge shotgun shell and several .22-caliber
bullets in the home, both the same brand as those used in Rob’s
murder. There was no evidence of a break-in, but Andrew had a key
to their home. Prosecutors suggested that, after the shooting,
Pavatt hid in the home until police had left the crime scene.
Rather than attend her husband’s funeral, Andrew
traveled with Pavatt and her children to Mexico. She apparently had
no plans to return. Before the trip, Andrew tried to transfer funds
from her account to Larson’s, so that Larson could wire money to
her and Pavatt. The pair also asked Larson to help them forge Rob’s
signature on a document granting Andrew permission to take the
children abroad. Andrew abandoned her car in an apartment complex
before leaving. She also stopped making payments on her home.
Pavatt researched traveling to Argentina after hearing that
Argentina did not extradite.
Larson, however, cooperated with the FBI and
refused to wire Pavatt or Andrew any money, despite their repeated
requests. When they ran out of money three months later, they
returned to the United States and were immediately arrested.
While in Mexico, Pavatt wrote a letter addressed
to Andrew’s daughter claiming that he and an unnamed “friend” had
killed Rob, and that Andrew had nothing to do with it.
Ante,
at 2. He stated he did so because Andrew had told him four days
before the murder that she planned to beg Rob to take her back
after Thanksgiving. This was a peculiar claim, given that hours
before the murder Pavatt had moved his washer and dryer into her
home. And, far from adopting a conciliatory attitude toward Rob,
the night before the murder Andrew had called a friend just to say,
“I hate him. I hate him. I hate him.” Tr. 2662–2663 (July 1, 2004).
The friend recalled that the comment “made the hairs on the back of
my neck stand up. She hated that man.”
Id., at 2664.
B
A jury convicted Andrew of capital murder, and
she was sentenced to death. So too was Pavatt in a separate trial.
Sex and marriage were unavoidable issues at Andrew’s trial, and the
State introduced a variety of evidence about her sexual behavior.
On direct appeal, Andrew challenged some of the sex-based evidence
introduced during the guilt phase of her trial, arguing that it was
irrelevant and unduly prejudicial.[
1] Given that “this trial was primarily about the motive
and intent of [Andrew] to kill her husband with the aid of Pavatt,”
the OCCA held that much of this evidence, particularly concerning
her relationship with Pavatt, was not just admissible, but “highly
relevant” and “probative.”
Andrew, 164 P. 3d, at 194.
But, not all of it was so. The OCCA recognized that some evidence,
like the sort of outfits Andrew wore to dinner outings, was not
relevant.
Id., at 192. Given “the overwhelming evidence in
this case,” however, it determined that the introduction of the
irrelevant evidence “was harmless.”
Ibid.
The Court suggests that the OCCA permitted
evidence of Andrew’s two prior affairs simply because it showed she
had a penchant for adultery. See
ante, at 3. In reality, the
OCCA concluded that this evidence helped to prove “motive and
intent.”
Andrew, 164 P. 3d, at 192. Andrew had “shared
with both of these men her hatred for Rob Andrew and her wish that
he was dead.”
Ibid. Evidence that Andrew had “a close
personal relationship” with these men gave credence to their
testimony that she had revealed to them these “intimate details of
[her] marriage.”
Ibid.[
2]
The Court also insinuates that there was
something improper about the State’s introduction of evidence on
Andrew’s “failings as a mother.”
Ante, at 1. But, it
conveniently omits the context. Andrew asserted that she was a
“good mother” as part of her defense in both the guilt and penalty
phases of her trial. Tr. 62–63 (June 17, 2004); Tr. 4179 (July 14,
2004);
Andrew, 164 P. 3d, at 205. In presenting
evidence to the contrary, the State was simply
rebutting a
point that
Andrew had placed in issue, as it clearly is
entitled to do. See 1 R. Mosteller et al., McCormick on
Evidence §191, p. 1188 (8th ed. 2020) (“[O]nce the defendant gives
evidence of pertinent character traits to show that he is not
guilty, his claim of possession of these traits . . . is
open to rebuttal”).
During its closing argument, the prosecution did
not rely on any of the sexual evidence that the OCCA would later
find irrelevant.[
3] The
prosecution’s reference to the underwear Andrew brought to Mexico,
see
ante, at 2, is no exception. The OCCA recognized that
this evidence bore on Pavatt’s and Andrew’s “intentions in fleeing
to Mexico,” a key issue in the case.
Andrew, 164 P. 3d,
at 194.
Finally, the Court is wrong to imply that the
prosecution drew any kind of “contras[t]” between Rob and Andrew in
terms of religious commitment.
Ante, at 2. The prosecution
mentioned Rob’s religious faith to emphasize that the world lost “a
fine human being” when Rob was brutally murdered. Tr. 4401–4402
(July 14, 2004). But, the prosecution never cast any sort of
religious judgment against Andrew. Tellingly, the Court is unable
to cite even one example of the prosecution condemning Andrew in
religious terms.
The record makes clear that it was
the
defense, not the prosecution, that repeatedly appealed to the
jury’s religious sentiments at sentencing. For example, the defense
called a pastor as a witness, who testified to the importance of
“mercy” as a “biblical” value.
Id., at 4333. And, in its
closing, the defense repeatedly quoted the Bible; said that, if Rob
could speak to the jury, he would ask them to “forgive” Andrew as
“Jesus Christ on the cross” forgave His killers; and concluded with
a prayer.
Id., at 4429–4430, 4471–4473. The prosecution
simply asked the jury during rebuttal to ignore the defense’s
attempts to “guilt trip” them.
Id., at 4480.
II
The Court’s legal analysis fares no better.
Under AEDPA, Andrew may obtain federal habeas relief only if the
OCCA’s resolution of her due process claim “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by” the holdings of this Court. 28
U. S. C. §2254(d)(1); see
Lockyer v.
Andrade,
538 U.S.
63, 71 (2003). This “standard is,” and “was meant to be,”
“difficult to meet.”
Harrington v.
Richter,
562 U.S.
86, 102 (2011). It forecloses relief unless all “fairminded
jurists” would agree that the OCCA’s “decision conflicts with this
Court’s precedents.”
Ibid.
The Court today asserts that the Due Process
Clause forbids the admission of evidence so unduly prejudicial as
to render a defendant’s trial fundamentally unfair, and holds that
the Tenth Circuit erred in failing to recognize this rule as
clearly established under our precedents. In so holding, the Court
commits the error of “ ‘framing our precedents at’ ” too
“ ‘high [a] level of generality.’ ”
Lopez v.
Smith,
574 U.S.
1, 6 (2014) (
per curiam) (quoting
Nevada v.
Jackson,
569 U.S.
505, 512 (2013) (
per curiam)). And, even setting that
aside, this reading of our precedents is one with which fairminded
jurists could easily (and justifiably) disagree.
A
“[H]oldings that speak only at a high level of
generality” “cannot supply a ground for relief ” under AEDPA.
Brown v.
Davenport, 596 U.S. 118, 136 (2022). We have
repeatedly cautioned lower courts against “framing our precedents”
too generally.
Lopez, 574 U. S., at 6 (internal
quotation marks omitted); see,
e.
g.,
Woods v.
Donald,
575 U.S.
312, 318–319 (2015) (
per curiam);
White v.
Woodall,
572 U.S.
415, 426 (2014);
Nevada, 569 U. S., at 512;
Harrington, 562 U. S., at 101;
Knowles v.
Mirzayance,
556 U.S.
111, 122 (2009). We have instead required courts to ask whether
our precedents “establish clearly
the specific rule [the
prisoner] needs.”
Lopez, 574 U. S., at 6 (emphasis
added). The Tenth Circuit heeded our repeated warnings. The
majority disregards them.
Payne “h[e]ld” that “the Eighth Amendment
erects no
per se bar” to “the admission of victim
impact evidence” in capital sentencing proceedings. 501 U. S.,
at 827. But, the Court included a caveat: “In the event that
evidence is introduced that is so unduly prejudicial that it
renders the trial fundamentally unfair, the Due Process Clause of
the Fourteenth Amendment provides a mechanism for relief.”
Id., at 825. Significantly, that caveat did not apply in
Payne itself. There, as in “the majority of cases,” the
“victim impact evidence serve[d] entirely legitimate purposes.”
Ibid.
The Tenth Circuit correctly rejected Andrew’s
claim that
Payne’s caveat clearly established that the
admission of
any evidence so prejudicial as to render a
trial fundamentally unfair would violate due process. It held that
Payne’s brief discussion of due process only “appl[ied] to
scenarios in which . . . victim impact statements” are
“unfairly prejudicial.” 62 F. 4th 1299, 1314 (2023) (internal
quotation marks omitted).
Nevertheless, the Court today vacates the Tenth
Circuit’s decision, marking the first time it has ever summarily
set aside a lower court decision for
failing to find that a
legal rule is clearly established under AEDPA. Yet, the Court does
not identify a specific on-point holding from
Payne—or any
other decision—that the Tenth Circuit overlooked. Instead, it
faults the Tenth Circuit for failing to distill a “[g]eneral legal
principl[e]” about fairness from
Payne’s one-sentence due
process caveat.
Ante, at 8. In the process, the Court does
not once mention, much less distinguish, our many precedents
admonishing lower courts not to define clearly established law too
abstractly.
This specificity requirement serves an important
function. Defining clearly established law at an overly high level
of generality makes it virtually impossible to find an unreasonable
application warranting relief. See
Brown, 596 U. S., at
136. It “is not ‘an unreasonable application of ’ ” a
more general rule “for a state court to decline to apply a specific
legal rule that has not been squarely established by this Court.”
Knowles, 556 U. S., at 122. “[I]f a habeas court must
extend a rationale before it can apply to the facts at hand, then
by definition the rationale was not clearly established at the time
of the state-court decision.”
White, 572 U. S., at 426
(internal quotation marks omitted). When a legal rule is defined at
too high a level of generality, it becomes impossible to apply it
to the facts without articulating subsidiary legal principles that
are not themselves clearly established, leaving no principled basis
for granting relief under §2254(d).
To the extent some courts nonetheless grant
relief based on an overly general principle, they defy AEDPA. As we
have explained, when courts use “a high level of generality” to
“transform even the most imaginative extension of case law into
‘clearly established Federal law,’ ” they wrongly perform
ordinary error correction under the guise of applying §2254(d).
Nevada, 569 U. S., at 512. Thus, at best, today’s
decision will simply create an extra, unnecessary step judges must
perform before they can deny a habeas claim that is doomed to fail.
At worst, it will confuse lower courts into misapplying AEDPA’s
standard of review.
Consider Andrew’s case. On remand, if the Tenth
Circuit properly applies AEDPA, it still will find that the state
court reasonably applied the principle the Court has identified, no
matter what it thinks of the specific facts of Andrew’s trial.
Payne addressed the use of victim-impact evidence at the
penalty phase of a capital trial. 501 U. S., at 824–825.
Andrew challenges the admission of evidence from her guilt phase,
as well as non-victim-impact evidence from her penalty phase. “[I]t
is not uncommon for a constitutional rule to apply somewhat
differently at the penalty phase than it does at the guilt phase.”
White, 572 U. S., at 421. And, a fairminded jurist
could believe that victim- impact evidence raises unique due
process concerns; otherwise, the specific question whether
victim-impact evidence categorically violates the Eighth Amendment
would never have arisen. So, it would be impossible for the Tenth
Circuit to grant Andrew relief without impermissibly “extend[ing]”
Payne’s “rationale.”
Id., at 426 (internal quotation
marks omitted).
Andrew’s claim also cannot survive on remand
because
Payne’s lone sentence on due process does not
establish a test for determining when a trial is so infected by
prejudicial evidence as to be fundamentally unfair. It does not
identify what factors a court should consider, how to weigh them,
or what the gap is between, say, a garden-variety Federal Rule of
Evidence 403 error and a fundamentally unfair trial. To consider
the specific facts of Andrew’s trial, the Tenth Circuit would need
to decide these matters for itself. But it would then by definition
be doing more than applying clearly established law. See
Knowles, 556 U. S., at 122.
The Court defends its reliance on a broadly
defined rule of law by citing
Lockyer, 538 U. S., at
73, which recognized as clearly established the general principle
that grossly disproportionate sentences violate the Eighth
Amendment.
Ante, at 8. But, in
Lockyer the Court
denied relief, so it did not carefully consider the appropriate
level of generality at which to define clearly established law.
Indeed, it denied relief precisely
because it had identified
a “broad” legal principle whose “precise contours” were “unclear.”
538 U. S., at 76–77 (internal quotation marks omitted).
Lockyer also was an early AEDPA decision. In our many
subsequent decisions, we have come to appreciate the need to ask
whether our precedents “establish clearly
the specific rule
[the prisoner] needs.”
Lopez, 574 U. S., at 6 (emphasis
added). “[H]oldings that speak only at a high level of generality”
cannot “supply a ground for relief ” under AEDPA.
Brown, 596 U. S., at 136.
In an effort to show that remand will not be
futile, the Court observes that clearly established law can apply
to “ ‘new factual permutations.’ ”
Ante, at 8
(quoting
White, 572 U. S., at 427). That is true, so
long as one also keeps in mind
White’s admonition that AEDPA
“does not require state courts to
extend [our] precedent” to
any arguably distinct context, as would be necessary to grant
Andrew relief.
Id., at 426. The Court attempts to escape
White’s strict limitation by invoking
Taylor v.
Riojas, 592 U.S. 7 (2020) (
per curiam), to
suggest that a “ ‘general constitutional rule’ ” can be a
basis for relief in an “ ‘obvious’ ” case.
Ante,
at 8–9. But, the majority omits that
Taylor is a qualified
immunity decision, rendering it utterly inapposite. Although both
qualified immunity and AEDPA impose demanding standards based on
“clearly established law,” the two are meaningfully different. A
plaintiff overcomes qualified immunity by identifying case law
“finding a [constitutional] violation under similar circumstances,”
except that in “an obvious case . . . a body of
relevant case law is not needed.”
District of Columbia v.
Wesby, 583 U.S. 48, 65 (2018) (internal quotation marks
omitted). In
Taylor, this Court found that the obviousness
exception applied. 592 U. S., at 8–9. AEDPA, by contrast,
permits relief only when a state-court decision undeniably
“conflicts with this Court’s precedents.”
Harrington, 562
U. S., at 102.
Regardless of what we think of “the merits of
the [due process] principle” that Andrew asserts, it does not
warrant relief under AEDPA absent a prior Supreme Court holding
that the principle “applies to the circumstances presented in this
case.”
Woods, 575 U. S., at 319 (internal quotation
marks omitted). There is no such holding here, and the Tenth
Circuit was right to insist on one.
B
Even setting aside the level-of-generality
problem, the Court is wrong to find a clearly established rule of
law. For at least three reasons, a fairminded jurist could disagree
with the Court’s reading of
Payne. The Court holds otherwise
only by redefining “clearly established” law to include debatable
interpretations of our precedents.
1
First, a fairminded jurist could conclude that
Payne’s lone sentence on due process is not a holding at
all. Although
Payne asserted that victim-impact evidence
could violate due process if it was unduly prejudicial, the Court
found that “in this case” the evidence “serves entirely legitimate
purposes,” and so declined to disturb the capital sentence under
review. 501 U. S., at 825. The Court’s statement that a
different case presenting different facts could violate due process
was thus dicta because it was not “ ‘
necessary
to’ ” its “disposition of [the] case.”
Tyler v.
Cain,
533 U.S.
656, 663, n. 4 (2001) (quoting
Seminole Tribe of
Fla. v.
Florida,
517 U.S.
44, 67 (1996)); see
Stewart v.
Winn, 967 F.3d
534, 539 (CA6 2020) (describing
Payne’s due process
discussion as a “snippe[t]” of “ ‘dicta’ ”). As we have
previously recognized, because “ ‘clearly established
[f]ederal law’ . . . ‘refers to the
holdings’ ” of this Court, Andrew cannot premise her
habeas claim on “a case in which we
rejected a due process
claim.”
Metrish v.
Lancaster,
569
U.S. 351, 367 (2013) (alteration in original).
The Court insists
Payne’s due process
statement was “indispensable” to its disposition, because without
the existence of a due process backstop, the
Payne Court
might have determined that a categorical Eighth Amendment bar on
victim-impact evidence is necessary to protect defendants.
Ante, at 7. But, this is hardly the only “reasonable
interpretatio[n]” of
Payne, which nowhere sets forth the
reasoning the Court ascribes to it.
White, 572 U. S.,
at 423. The Court’s interpretation makes sense only if we assume
that the
Payne Court would have seriously considered holding
victim-impact evidence categorically unconstitutional despite it
“serv[ing] entirely legitimate purposes” in “the majority of
cases.” 501 U. S., at 825. That would be a highly unusual
approach to constitutional litigation. Cf.
United States v.
Salerno,
481 U.S.
739, 745 (1987) (requiring that a law be valid in “no set of
circumstances” to be facially unconstitutional). Another reasonable
interpretation—and indeed, a far more plausible one—is that the
Court simply wanted to make clear that its rejection of a
categorical rule against victim-impact evidence did not rule out
future fact-specific challenges. That kind of dicta is common in
cases rejecting categorical challenges. See,
e.g.,
United
States v.
Hansen, 599 U.S. 762, 784–785 (2023). A
fairminded jurist need not agree that
Payne’s
single-sentence caveat constitutes a holding.
2
Even if we were to treat
Payne’s
sentence about due process as a holding, a fairminded jurist need
not read it as broadly as the Court does. “[G]eneral expressions,
in every opinion, are to be taken in connection with the case in
which those expressions are used. If they go beyond the case, they
. . . ought not to control the judgment in a subsequent
suit.”
Cohens v.
Virginia, 6 Wheat. 264, 399 (1821).
This principle applies with special force when a party claims “a
single sentence” in an opinion establishes a broad legal principle.
See
Arkansas Game and Fish Comm’n v.
United States,
568 U.S.
23, 35 (2012).
A fairminded jurist could believe that the scope
of any holding established by
Payne’s cursory discussion of
due process is limited to
Payne’s analysis. On the
majority’s telling,
Payne eliminated a categorical Eighth
Amendment prohibition
on victim-impact evidence because of
the availability of an alternative due process protection
against such evidence. See
ante, at 6–7. Because
Payne was not considering the role of due process vis-à-vis
any other kind of evidence, a fairminded jurist could conclude that
any due process holding laid down by
Payne extends only to
victim- impact evidence.
3
Finally, a fairminded jurist could rely on
this Court’s later decision in
Estelle to conclude that
Payne did not establish any general due process prohibition
on the admission of unduly prejudicial evidence.
The Court of Appeals in
Estelle granted
habeas relief on the ground that the admission of irrelevant and
prejudicial prior-bad-act evidence had helped render the prisoner’s
trial “fundamentally unfair in violation of due process.” 502
U. S., at 67 (internal quotation marks omitted). This Court
reversed, holding the evidence in question “was relevant to an
issue in the case.”
Id., at 70. Having reached this
conclusion, the Court added that “we need not explore further the
apparent assumption of the Court of Appeals that it is a violation
of the due process guaranteed by the Fourteenth Amendment for
evidence that is not relevant to be received in a criminal trial.”
Ibid. That is, the
Estelle Court expressly reserved
the very question the majority asserts
Payne resolved. This
Court is “hardly in the habit of reserving separate questions that
have already been definitively answered.”
White, 572
U. S., at 424 (citation, alteration, and internal quotation
marks omitted). Thus, “fairminded jurists could conclude that
[
Estelle]’s reservation regarding” unduly prejudicial
evidence “would have served no meaningful purpose if [
Payne]
had created [a] rule against” it already.
Ibid.; accord,
Kernan v.
Cuero, 583 U.S. 1, 8 (2017) (
per
curiam).
The law has not changed since we decided
Estelle. The Court cites several decisions postdating and
predating
Payne and
Estelle, but only for vague,
atmospheric support. See
ante, at 7–8. The Court does not
assert that any of them establishes a general due process rule
against unduly prejudicial evidence. And, the Court does not
explain what work, if any, these citations do in its analysis. Nor
could it. Our decision in
Romano v.
Oklahoma,
512 U.S.
1, 13–14 (1994), cannot move the needle because
Romano
rejected a due process claim. The reference to due process
in
Kansas v.
Carr,
577 U.S.
108, 123 (2016), also is not a holding. As in
Payne, it
is a one-sentence aside in a case rejecting an Eighth Amendment
claim. Regardless,
Carr has no possible bearing on this
case, as it was decided after the conclusion of Andrew’s direct
appeal. See
Lockyer, 538 U. S., at 71–72. So too, the
Court’s remaining citations are clearly inapposite, as none
involves the admission of evidence. As the Tenth Circuit correctly
recognized, this Court has never answered the question it reserved
in
Estelle. 62 F. 4th, at 1315.
4
Remarkably, the Court does not deny that “a
reasonable jurist could agree” that
Payne does not establish
the principle Andrew asserts.
Ante, at 9. Instead, it
maintains that the potentially differing views of reasonable,
fairminded jurists do not matter. According to the majority,
federal habeas courts have an “independent obligation” to identify
the holdings of this Court.
Ibid. Only afterward does
“deference” kick in.
Ibid.
That view is patently wrong. AEDPA requires
state prisoners to base their claims on “ ‘clearly
established’ ” law.
Ibid. (quoting §2254(d)(1)). A
debatable holding does not
clearly establish anything. AEDPA
permits relief only when “the state court’s ruling . . .
was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility
for fairminded disagreement.”
Harrington, 562 U. S., at
103. If one could fairly disagree that the rule a prisoner invokes
is part of “existing law,” one could fairly disagree that the state
court erred under existing law.
Our precedents confirm that debatable readings
of this Court’s cases cannot be clearly established law. In
White, we held that
Estelle v.
Smith,
451 U.S.
454 (1981), did not clearly establish the prisoner’s asserted
rule, because other “perfectly reasonable interpretations of
Estelle” existed. 572 U. S., at 423. In other words,
the prisoner’s claim failed because “fairminded jurists could
conclude” that
Estelle had not “created [the]
across-the-board rule” he invoked. 572 U. S., at 424. To find
clearly established law in the face of these reasonable alternative
interpretations would “contraven[e] §2254(d)’s deferential standard
of review.”
Id., at 423–424. Likewise, in
Kernan, we
reversed after the Ninth Circuit held that our decision in
Santobello v.
New York,
404 U.S.
257 (1971), clearly established the rule on which the prisoner
relied. See 583 U. S., at 6–9. Because “ ‘fairminded
jurists could disagree’ with the Ninth Circuit’s reading of
Santobello,” we were “unable to find in Supreme Court
precedent that ‘clearly established federal law’ ” that the
Ninth Circuit had claimed to see.
Id., at 7–8. Thus,
contrary to what the majority says, we have extended “deference”
both at the threshold step of identifying clearly established law
and at the subsequent step of applying it.
Ante, at 9. A
contestable interpretation of precedent cannot be clearly
established law.
* * *
Summary vacatur “is a rare disposition.”
Schweiker v.
Hansen,
450 U.S.
785, 791 (1981) (Marshall, J., dissenting). This Court has
traditionally reserved it for the uncommon “situations in which the
law is settled and stable, the facts are not in dispute, and the
decision below is clearly in error.”
Ibid. Today, however,
the Court turns this approach on its head, steamrolling settled
AEDPA principles to set aside an entirely correct Tenth Circuit
decision. I respectfully dissent.