Will Bode

Yeah, no, I think if you told me the Supreme Court summarily reversed the denial of habeas relief by the Tenth Circuit, I would say, wow, is it 2003 again? That's not a thing the court's been doing for a while.

Yeah, no, I think if you told me the Supreme Court summarily reversed the denial of habeas relief by the Tenth Circuit, I would say, wow, is it 2003 again? That's not a thing the court's been doing for a while.

Now, there is a kind of, you know, a thermostatic dynamic, right, where the court so clearly sends the message that in habeas cases governed by EDPA, the correct answer is no relief and you just have to figure out how to get there. That at some point, you know, people people take that message too much to heart. And then the court has to say, OK, well, we didn't mean like literally every case.

Now, there is a kind of, you know, a thermostatic dynamic, right, where the court so clearly sends the message that in habeas cases governed by EDPA, the correct answer is no relief and you just have to figure out how to get there. That at some point, you know, people people take that message too much to heart. And then the court has to say, OK, well, we didn't mean like literally every case.

Right. And so you saw this in there were tons of summary reversals where a lower court found a denial of qualified immunity. And the Supreme Court was merely averse over and over and over again until eventually the Fifth Circuit, you know, granted qualified immunity on facts. So egregious that the Supreme Court said, well, you know, we didn't mean we didn't mean that.

Right. And so you saw this in there were tons of summary reversals where a lower court found a denial of qualified immunity. And the Supreme Court was merely averse over and over and over again until eventually the Fifth Circuit, you know, granted qualified immunity on facts. So egregious that the Supreme Court said, well, you know, we didn't mean we didn't mean that.

So I guess we're seeing it's time for that.

So I guess we're seeing it's time for that.

So what part of due process does that violate? Is there just a right not to be painted as a scarlet woman?

So what part of due process does that violate? Is there just a right not to be painted as a scarlet woman?

So maybe this is my naive view about holdings. But I sort of always thought that if it was a case where the government won, then all the stuff in the opinion that's anti-government is dicta. Like, cause it's like the, you know, the ultimate holding is the government gets to introduce victim impact statements.

So maybe this is my naive view about holdings. But I sort of always thought that if it was a case where the government won, then all the stuff in the opinion that's anti-government is dicta. Like, cause it's like the, you know, the ultimate holding is the government gets to introduce victim impact statements.

And then a lot of talk about like the limits of that or times they might not, you know, is in a sense dicta. Like when you're a, I think a lot of practicing lawyers are always like, what I really want are cases that have good language for us and in which our side won. Cause then I can say like, we know that it really made a difference here.

And then a lot of talk about like the limits of that or times they might not, you know, is in a sense dicta. Like when you're a, I think a lot of practicing lawyers are always like, what I really want are cases that have good language for us and in which our side won. Cause then I can say like, we know that it really made a difference here.

Although also what they said is there's another mechanism. Right. So they didn't say like what – how that mechanism works, like whether it actually violates – you know. Yeah. I mean often the court says you don't have this remedy. Don't worry. There's some other mechanism.

Although also what they said is there's another mechanism. Right. So they didn't say like what – how that mechanism works, like whether it actually violates – you know. Yeah. I mean often the court says you don't have this remedy. Don't worry. There's some other mechanism.

And to treat that as a holding that the other mechanism is like definitively available and this is unconstitutional in the mechanism, that's –

And to treat that as a holding that the other mechanism is like definitively available and this is unconstitutional in the mechanism, that's –

Right. Right. And the court has even said it has to be clearly established by the holdings of Supreme Court cases. Right. So that's why – Not the dicta. Not the dicta. So that's what the court has to now hold that it was clearly the holding of Payne versus Tennessee that the due process clause forbids you to introduce large piles of prejudicial and irrelevant evidence. Right. Yes.

Right. Right. And the court has even said it has to be clearly established by the holdings of Supreme Court cases. Right. So that's why – Not the dicta. Not the dicta. So that's what the court has to now hold that it was clearly the holding of Payne versus Tennessee that the due process clause forbids you to introduce large piles of prejudicial and irrelevant evidence. Right. Yes.