Alito, J., dissenting
State had made such an argument, what matters is the basis for the state court’s decision, not what counsel for the State wrote or said.
I add one more comment regarding the majority’s uncertainty about the basis for the state-court decision: Our decision two years ago in Dunn evinced no similar doubts. There, we said that the state court “held that, under this Court’s decisions in Ford and Panetti, Madison was entitled to relief if he could show” that he lacks a rational understanding of the circumstances of his punishment. 583 U. S., at ___ (slip op., at 2) (quotation altered). And we said that the state court “determined that Madison is competent to be executed because–notwithstanding his memory loss–he recognizes that he will be put to death as punishment for the murder he was found to have committed.” Id., at ___ (slip op., at 4); see also ibid. (referring to the state court’s “finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime”). Why the majority cannot now see what it understood without any apparent difficulty two years ago is hard to grasp.
For all these reasons, what the Court has done in this case cannot be defended, and therefore it is hard to escape thinking that the real reason for today’s decision is doubt on the part of the majority regarding the correctness of the
established federal law”).
The majority acknowledges that the State made this concededly correct habeas argument, but then oddly writes it off as an “additional” or alternative argument. Ante, at 7, n. 1. Yet, as the State’s brief and oral argument illustrate, the State’s core contention was that the state court did not unreasonably apply clearly established law under Panetti’s “very narrow” holding. (And as we later held in Dunn, the State was correct.) The majority simply cannot escape the inconvenient fact that the State never argued, as a non-AEDPA matter, that petitioner could be executed even if his dementia precluded a rational understanding.
