Chief Justice Roberts' dissent today in Abdul-Kabir v. Quarterman ends with a serious zinger aimed at Justice Stevens.

  By way of background, this case considered whether the Texas courts had misapplied "clearly established" U.S. Supreme Court law in a death penalty case. In the dissenters' view — which I tend to think is right, although I'm not an expert in this area — the majority opinion is pretty much a fudge. The majority wanted to grant relief, so they tried to make the law seem "clearly established" when it really wasn't. To do this, the majority had to get a little creative in what kind of U.S. Supreme Court law it thought could "clearly establish" the law. Of particular note, today's majority opinion by Justice Stevens twice cites a dissent Justice Stevens wrote in a 1988 case for authority that a particular view of the law was "clearly established."

  At the end of his dissent today, Chief Justice Roberts mocks the idea of getting clearly established law from a dissent. Here's the last paragraph:

  Still, perhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented “clearly established” federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc. Encouraged by the majority’'s determination that the future can change the past, I respectfully dissent.

(I believe "tunc pro nunc" means "then for now," suggesting that the dissent will always have this effect.)

  Ouch. Of course, whether it's wise to use zingers like that can be hard to tell.

  Thanks to Amy Howe for flagging the passage.