Sotomayor and Ginsburg join dissenting from denial of certiorari today

[usregimechange]

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting from denial of certiorari.
Today the Court refuses to review the Eighth Circuit’sconclusion that a State may withhold an objection to afederal habeas evidentiary hearing until after the hearing is complete, the constitutional violation established, andhabeas relief granted. Because I believe such a rule en-ables, and even invites, States to manipulate federal habeas proceedings to their own strategic advantage at anunacceptable cost to justice, I respectfully dissent.

http://www.supremecourt.gov/opinions/10pdf/09-10382.pdf


Kagan and Breyer apparently didn't agree.

[BzaDem]

1. It could be that Kagan and Breyer didn't agree because if they did agree, cert would be granted, and

the 5 other justices would rule in a nationwide precedent-setting ruling curtailing Habeas review even more than it is already curtailed.

Or it could be that they simply don't agree. I have no idea -- it's useful to remember though that justices often strategically vote to deny cert when they know they'll lose.