Today’s en banc decision from the Ninth Circuit in Doody v. Shriro is interesting on a number of levels — I suspect there may be some interest in it at 1 First Street, for example — but I was also just struck by this paragraph from Judge Rawlinson’s opinion:
Our colleagues in dissent chastise us for reaching these conclusions, accusing the majority of “once again pay[ing] mere lip service to AEDPA and then proceed[ing] as though it did not exist.” See Dissenting Opinion, p. 3032. The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye.
I admit I have a strongly negative reaction to these sorts of overly-cute rhetorical flourishes in judicial opinions. If you want to write like Dahlia Lithwick, get a blog.
But that aside, isn’t the last line mixing metaphors? The metaphor of a rubber stamp refers to an official who only barely reviews a document before approving it. In contrast, the metaphor of puckering up and kissing something goodbye refers to saying farewell to something valued. Isn’t it sort of weird to “get . . . a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye?” Or is the is the idea that the judges would have the state court opinion and the Great Writ together on their desks, stamp one, and kiss the other? Seems pretty confusing. I guess it’s good that court won’t have to do it.