Hittson, the Slightly Superfluous Signal?

This is definitely not the biggest story coming out of the mound of opinions that the Court released today, but I wanted to briefly close the loop on my post from a few days ago on Justice Ginsburg’s concurrence in the denial of certiorari in Hittson v. Chatman. In the post, I suggested that Ginsburg’s Hittson opinion was a signal that Ylst v. Nunnemaker is still good law. But now, just three days later, the Court issued a majority opinion in Brumfield v. Cain that cites and applies Ylst, thereby making fairly clear the point that Ginsburg wrote to make. So, why did Justice Ginsburg write her concurrence?

By way of background, here’s a key passage from Justice Ginsburg’s Hittson concurrence:

The Eleventh Circuit plainly erred in discarding Ylst. In Richter, the only state court to reject the prisoner’s federal claim had done so in an unexplained order. See 562 U. S., at 96–97. With no reasoned opinion to lookthrough to, the Court had no occasion to cast doubt on Ylst. To the contrary, the Court cited Ylst approvingly in Richterid., at 99–100, and did so again two years later in Johnson v. Williams, 568 U. S. __, __, n. 1 (2013) (slip op., at 6, n. 1).

And here’s a passage from Justice Sotomayor’s opinion in Brumfield saying largely the same thing:

In conducting the §2254(d)(2) inquiry, we, like the courts below, “look through” the Louisiana Supreme Court’s summary denial of Brumfield’s petition for review and evaluate the state trial court’s reasoned decision refusing to grant Brumfield an Atkins evidentiary hearing. See Johnson v. Williams, 568 U. S. ___, ___, n. 1 (2013) (slip op., at 6, n. 1); Ylst v. Nunnemaker, 501 U. S. 797, 806 (1991).

So, as I tweeted this morning, I guess RBG wasn’t kidding when she wrote in Hittson that the “look through” approach was still good law!

But if that’s so, wasn’t Justice Ginsburg’s Hittson concurrence  superfluous? The best answer I can come up with is that Ginsburg wanted to underscore the vitality of Ylst, lest the Eleventh Circuit overlook the relevant passage in the Brumfield majority or choose not to go en banc, thereby forcing action by the Court. Ginsburg may also have wanted to address the differences between the review procedures in the two state supreme courts, which the Eleventh Circuit might have distinguished.

That still leaves the question (implicitly raised by Steve Horwitz) of why Justice Ginsburg didn’t try to push back the denial of certiorari in Hittson another week. Hittson had already been distributed more than a few times, and if she had held off for one more distribution then she could point to Brumfield as proof positive of her viewI’d be curious to hear any theories as to this very little mystery.

First posted on Prawfs.

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