Monday's flurry of opinions included a fascinating decision in Roper v. Weaver, a capital case that the Court apparently took to correct a somewhat wacky application of AEDPA from the Eighth Circuit. The case was briefed and argued, and on Tuesday the Court decided to DIG the case — dismiss it as improvidently granted -- on essentially equitable grounds. In other similar cases, including one involving the respondent's co-defendant, AEDPA didn't apply and relief was granted. To avoid a likelihood of having to apply AEDPA — and, one assumes, to deny relief — the Court decided to dismiss the writ and let the Eighth Circuit decision stand to make sure that the similar set of cases received similar results.

  Justice Scalia, joined by Thomas and Alito, let'em have it in a dissenting opinion. It's worth reading in full, but the conclusion is particularly pointed:

  A postscript is warranted in light of the unusual circumstances in which we dispose of this case. The greatest harm done by today's cancellation is not to the State of Missouri, which will have to retry this murder case almost two decades after the original trial —- though that is harm enough. The greatest harm is that done to AEDPA, since dismissing the writ of certiorari leaves the Eighth Circuit's grossly erroneous precedent on the books. (That precedent, by the way, cannot be explained away — as perhaps the Court's own opinion can — as the product of law-distorting compassion for a defendant wronged by a District Court's erroneous action. As noted earlier, the Eighth Circuit was not informed of that erroneous action. It presumably really believes that this is the way AEDPA should be applied.) Other courts should be warned that this Court's failure to reverse the Eighth Circuit's decision is a rare manifestation of judicial clemency unrestrained by law. They would be well advised to do unto the Eighth Circuit's decision just what it did unto AEDPA: ignore it.
  For the foregoing reasons, I respectfully dissent.