Shouldn’t SCOTUS have just DIG’d Burton?

Here is a question for SCOTUS gurus: shouldn’t the Supreme Court in Burton have just dismissed the petition as improvidently granted (a DIG), rather than turn the case into a ruling on federal AEDPA law?

The Court’s per curiam ruling in Burton v. Stewart can be found at this link, and the first two sentences of the opinion tell the heart of the story:

We granted certiorari in this case to determine whether our decision in Blakely v. Washington, 542 U.S. 296 (2004), announced a new rule and, if so, whether it applies retroactively on collateral review.  We do not answer these questions, however, because petitioner — a state prisoner seeking postconviction relief from the federal courts — failed to comply with the gatekeeping requirements of 28 U.S.C. §2244(b).

Because Burton was supposed to be about Blakely retroactivity, the parties and amici focused on this complicated and very consequential issue.  (The Burton briefs can be found here.)  But the per curiam opinion, while avoiding Blakely retroactivity issues completely, turned into a fairly extensive exegesis of how to apply provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

The parties in Burton barely discussed AEDPA in their briefs, and the Solicitor General’s amicus brief did not even mention this issue.  Though I am not sure if Burton breaks any important AEDPA ground, wouldn’t a truly reserved Court have just DIG’d this case rather than opine on a set of issues that were not fully briefed?   

Because the AEDPA issue involved a jurisdictional matter, perhaps the Court considered a DIG inappropriate.  But I still think a DIG followed by a grant in another Blakely retroactivity case would have been a much better way to deal with these matters after so many folks, upon the Court’s decision to grant cert, spent so much time and energy on the important (and now still unresolved) Blakely retroactivity issue.

UPDATE:  I’m convinced by commentors to this post and Howard that the jurisdiction issue and other related considerations justified the Court’s decision not to simply DIG Burton.  Left open, however, is whether, when and how SCOTUS will finally get to the issue of Apprendi and Blakely and Booker retroactivity. 

Relatedly, I think the AP’s headline reporting on the Burton ruling is telling: “High Court Rules Against Wash. State Rapist Who Wanted Sentence Reduced.”  I guess that headline is accurate, but it certainly gives the case a different flavor than one might expect.

ANOTHER UPDATE:  In you really dig DIGs, be sure to check out a recent article just brought to my attention:  Michael E. Solimine & Rafael Gely, The Supreme Court and the DIG: An Empirical and Institutional Analysis, 2005 Wisconsin Law Review 1421.