Last year in Trevino v. Thaler, Justice Breyer rejected a call to certify a question to a state court, noting that he would never do it again. Justice Alito knew exactly what case he was talking about.
MR. OLDHAM: Well, Your Honor, I think you could do one of two things: You could always certify the question to the Court of Criminal Appeals if you thought that the question — that the answer turns on what the Texas procedures are and that the parties disagree with them.
JUSTICE BREYER: I tried that once in a case involving Pennsylvania and the result was such that I resolved never to do it again. (Laughter.)
JUSTICE BREYER: But — but don’t say never. All right. So one thing we got -
JUSTICE ALITO: That was a case in which - that was the case in which the Court unwisely reversed a certain Third Circuit decision. (Laughter.)
At the time, I noted that I didn’t have time to find the case. Fortunately, reader David W. has come through.
Those sting, huh.