The Supreme Court handed down three opinions on the death penalty this morning. All three cases involved jury instructions in cases from Texas. In all three cases, the lower court denied relief. This morning, the Supreme Court reversed each case 5-4, ruling in favor of the defendant in all three cases. In each case, Stevens, Kennedy, Souter, Ginsburg, and Breyer were in the majority; Roberts, Scalia, Thomas, and Alito dissented.

  In two cases, Abdul-Kabir v. Quarterman and Brewer v. Quarterman,the Court found that the Texas state courts had "unreasonably applied" U.S. Supreme Court law on jury instructions, entitling the defendants to relief even under AEDPA. Chief Justice Roberts wrote a vigorous consolidated dissent in the two cases that accused the majority of being "revisionist" in light of AEDPA's deferential standard. According to Roberts, the majority was fudging the AEPDA standard to provide relief:

  We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to “"clearly established”" federal law. If the law were indeed "clearly established" by our decisions "“as of the time of the relevant state-court decision,"” Williams v. Taylor, 529 U. S. 362, 412 (2000), it should not take the Court more than a dozen pages of close analysis of plurality, concurring, and even dissenting opinions to explain what that “clearly established” law was. Ante, at 10–24. When the state courts considered these cases, our precedents did not provide them with “clearly established” law, but instead a dog’'s breakfast of divided, conflicting, and ever-changing analyses. That is how the Justices on this Court viewed the matter, as they shifted from being in the majority, plurality, concurrence, or dissent from case to case, repeatedly lamenting the failure of their colleagues to follow a consistent path. Whatever the law may be today, the Court’s ruling that '’twas always so -- —and that state courts were “"objectively unreasonable”" not to know it, Williams, supra, at 409— -- is utterly revisionist.

  Of particular interest, neither Chief Justice Roberts nor Justice Alito joined the part of Justice Scalia's dissent that repeated the Scalia/Thomas view that the Courts have no business here at all. Justice Alito joined part of Scalia's opinion, but not that section; Chief Justice Roberts did not join Scalia's dissent at all (perhaps in part because he had written his own in the case).

  Finally, the Court ruled in Smith v. Texas that the Texas Court of Criminal Appeals had improperly read the Supreme Court's decision in Smith v. Texas, 543 U. S. 37 (2004), as permitting the state court to perform a harmless error analysis on remand. Justice Kennedy's majority opinion has a long procedural history and then says, in effect, "nope, we did that already." Justice Alito wrote the dissent.

  Thanks to SCOTUSBlog for the early news and hosting of the Court's opinions.