I guess it’s the season for me to blog about obscure criminal cert. petitions. A little while ago, I wrote about Williams v. Johnson — a strange and troubling case I came across, where the Supreme Court had perhaps unintentionally foreclosed a prisoner’s habeas claim without explanation, in the course of discussing the threshhold question about what the standard of review for that claim was.

The Supreme Court called for a response, and the state of California has since filed one. Interestingly, the state entirely agrees that the Court did foreclose the prisoner’s habeas claim without explanation. It simply responds that this was okay for the Court to do. That is candid, but not exactly comforting. Williams has filed a very short reply [which, full disclosure, cites me in a footnote].

So now that the papers are in, what next? One obvious possibility is that the Supreme Court could simply deny cert. without comment, leaving us all to wonder what it did and why. Another slightly less obvious possibility is that the Court could grant cert. to decide the interesting jurisdictional claim raised in the petition — namely whether it is even allowed for the Court to decide a separate question that it has expressly declined to hear.

But those are not the only possibilities. If the Court recognizes that there is a minor problem here, but doesn’t wish to simply grant or deny cert., I can think of at least two other ways it might respond:

One way would be to deny cert. but for one or more Justices to issue an opinion respecting the denial. For example, I could imagine Justice Alito writing an opinion saying “we did not originally intend to foreclose the habeas claim, but having looked into it, several of us think it is meritless for the reasons given by the district court,” or maybe “we denied the claim on purpose, and that’s all I’m saying.”

Alternatively, and more optimistically, the Court could choose to amend its prior opinion (which is not yet codified in the U.S. Reports) to remove the stray sentence, and then GVR (grant/vacate/remand) the petition for reconsideration on the merits by the Ninth Circuit.

At this point, this last option strikes me as a healthy one, but it is not my opinion that matters.