As Lyle notes, if there had been a fourth vote to dissent in Cavazos v. Smith there would have been enough for cert. I can only presume that Justice Kagan was the holdout.
The Court really called out the 9th Circuit for repeatedely disobeying:
The decision below cannot be allowed to stand. This Court vacated and remanded this judgment twice before,calling the panel’s attention to this Court’s opinions highlighting the necessity of deference to state courts in§2254(d) habeas cases. Each time the panel persisted inits course, reinstating its judgment without seriously confronting the significance of the cases called to its attention. See Patrick v. Smith, 550 U. S. 915 (vacating and remanding in light of Carey v. Musladin, 549 U. S. 70 (2006)), reinstated on remand, 508 F. 3d 1256 (2007) (per curiam); 558 U. S. ___ (2010) (vacating and remanding in light of McDaniel v. Brown, 558 U. S. ___ (2010) (per curiam)), reinstated on remand sub nom. Smith v. Mitchell, 624 F. 3d 1235 (2010) (per curiam). Its refusal to do so necessitates this Court’s action today.
One interesting note dealt with the role of clemency (this reminded me of the Case of the Speluncean Explorers). The Court’s order effectively means that the defendant–who has been free for five years–must report back to prison, absent executive clemency (or the 9th Circuit making some other shit up):
It is said that Smith, who already has served years inprison, has been punished enough, and that she poses nodanger to society. These or other considerations perhapswould be grounds to seek clemency, a prerogative granted to executive authorities to help ensure that justice istempered by mercy. It is not clear to the Court whether this process has been invoked, or, if so, what its course hasbeen. It is not for the Judicial Branch to determine the standards for this discretion. If the clemency power isexercised in either too generous or too stingy a way, that calls for political correctives, not judicial intervention.
Ginsburg, whose dissent drips with empathy, basically says this is not fair.
Beyond question, the Court today reviews a case as tragic as it is extraordinary and fact intensive. By takingup the case, one may ask, what does the Court achieveother than to prolong Smith’s suffering and her separationfrom her family. Is this Court’s intervention really necessary? Our routine practice counsels no.
RBG is not willing to make an example out of the 9th Circuit here!
In sum, this is a notably fact-bound case in which theCourt of Appeals unquestionably stated the correct rule of law. It is thus “the type of case in which we are most inclined to deny certiorari.” Kyles v. Whitley, 514 U. S. 419, 460 (1995) (SCALIA, J., dissenting). Nevertheless, the Court is bent on rebuking the Ninth Circuit for what it conceives to be defiance of our prior remands. See ante, at 8. I would not ignore Smith’s plight and choose her case as a fit opportunity to teach the Ninth Circuit a lesson.
In sum, it’s not fair to dispose of this on summary disposition
Peremptory disposition, in my judgment, isall the more inappropriate given the grave consequences of upsetting the judgment below: Smith, who has already served ten years, will be returned to prison to complete a sentence of fifteen years to life. Before depriving Smith of the liberty she currently enjoys, and her family of hercare, I would at least afford her a full opportunity to defend her release from a decade’s incarceration.