Scalia issues a pithy “See I Told You So” Dissent

May 28th, 2013

This is the entirety of Nino’s dissent in Trevino v. Thaler:

I dissent for the reasons set forth in my dissent in Martinez v. Ryan, 566 U. S. 1 (2012). That opinion sought to minimize the impact of its novel holding as follows:

“Our holding here addresses only the constitutional claims presented in this case, where the State barred the defendant from raising the claims on direct appeal.’’ Id., at ___ (slip op., at 14).

I wrote in my dissent: “That line lacks any principled basis, and will not last.’’ Id., at ___ (slip op., at 2, n. 1).

The Court says today: “Texas law on its face appears to permit (but not require) the defendant to raise the claim on direct appeal. Does this difference matter?’’ “[W]e can find no significant difference between this case and Martinez.’’ Ante, at 8, 13 (emphasis removed).

The only thing missing was “See, I told you so!”

It was only joined by Thomas. Roberts, joined by Alito, wrote a substantive dissent.

I fully expect Scalia to write something like this when Brown v. Plata comes back up after the Governor of California refuses to comply with the 9th Circuit’s order. Also, when the Prop 8 case says a ban on same-sex marriage is unconstitutional. He’ll cite his Lawrence dissent, but with more more fanfare.