Now as to those I <3 Boobs T-shirts...

At long last, the Supreme Court has answered the vital question of what people in attendance at a murder trial can wear.

Carey v. Musladin

It lacks that certain Justice Thomas-I'm-overruling-stuff-that's-not-even-law-yet panache, but don't worry, Court fans, it's early season, where only the most unanimous of opinions are being thrown out at the women who insist on standing outside the Court throwing brassieres onto its front steps. And that's just Cindy Sheehan, who has to hang out somewhere. Oh, and although it doesn't sound like it, and although I don't think even Justice Thomas intended to, he made it happen in fine form today.

For those of you too intimidated by headnotes to penetrate the curt and breezy opinion's 6 pages, the Supreme Court determined that members of a victim's family can wear buttons with the victim's picture on them at trial.

Wait, no, that's too sweeping. Step back.

They decided that members of a victim's family can wear buttons with the victim's picture on them while the family members sit in the front row of the audience at a murder trial.

Hm. No, still too sweeping. That looks like a precedent.

They decided that when members of a victim's family can wear buttons with the victim's picture on them while the family members sit in the front row of the audience at a murder trial, it is not inherently prejudicial.

That's where it stops, right? Wrong.

This is the quiet beauty of AEDPA, the court systems are spent dealing with minutiae that can't possibly add up to a precedent, which is why the only thing that the Supreme Court can point to as inherently prejudicial is...damn, can't think of anything but shackling him. The best case the Court can point to as an analog here is Estelle v. Williams which is, under the O'Connor dicta the Court is adopting as a holding -- utterly meaningless in a habeas context. I will note that the trend of glorifying the street commodity of a bean balance that is the former Madame Justice is growing in popularity in habeas and Establishment Clause jurisprudence, proving once and for all that both fields of law are irreparably broken and the courts may fare better with a dart board or a party of five year olds pinning the case law on the majority opinion.

But now I must digress back into my point. Justice Thomas notes the O'Connor offering in a concurrence where she was only joined by Justice Stevens (hardly a font of beloved precedents these days -- just read Kyllo) that "clearly established Federal law" refers to the "holdings, as opposed to the dicta, of this Court." Then Thomas points out that this isn't clearly established law, there's no holding saying anything about people in the audience, there's no holding saying anything, in Estelle v. Williams, it was a question about dressing the defendant in prison clothing and so on.

But here's the lingering question. Why cite to these cases? What precedential authority does any discussion of Estelle v. Williams have? None. As Thomas states, it's a case where a defendant failed to object. It's like an exhaustion question. It has nothing to do with habeas in a non-exhaustion context. Any discussion of inherent prejudice from Estelle is, by his prior definition, pointless. Thomas then lists the panoply of disagreements from every court in the country as to whether the issue of whether Williams and Flynn have any application to people in attendance at trials or only state-sanctioned conduct and so on. Which all creates the illusion of an actually drafted legal opinion. That, my friends, it ain't. Ask yourself...what is the holding in this case? The holding in this case is not that the family's actions were not inherently prejudicial. In fact, the holding in this case is that there is no established federal law saying that they were not inherently prejudicial and there never has been. What's more, there never can be established federal law saying that it is not inherently prejudicial, because whatever Court offers that holding is exceeding its role under AEDPA.

So what is Carey v. Masludin? It's officially the end of history. Six justices take no issue with O'Connor's two cents on AEDPA and from this day forward, established federal law with regard to trial practice in a criminal context cannot change until AEDPA is replaced with something more draconian.

Don't get me wrong, the result in Carey v. Masludin is rightly decided, nine justices knew there wasn't much reason to fight this conclusion. That said, the next victim's family better not stop with the "my kid's in the band" plain photo buttons that these people did. I expect production values. I expect T-Shirts that read in 45 point Comic Sans MS (to keep things light) -- Defendant Brutally Murdered My Child and All I Got Was This Lousy T-Shirt. Find me clearly established federal law that prohibits it. And if you do, change the word "And" to "--" and I've got you a habeas-proof trial.

AEDPA has proven once and for all that the Republican party has been idiotic with its approach to all controversies. Every time someone burned a flag, aborted a fetus, or stopped a school prayer, they threatened to yank the Court's jurisdiction. That got people who understood jurisdiction angry, it got the Court indignant, and it ended up vanishing into a puff of smoke. But thanks to O'Connor's desperate attempt to join a majority intent on rendering AEDPA meaningless in Terry Williams, now AEDPA has left the Supreme Court as the kid with the Playskool steering wheel in the backseat of Congress' Hummer.