360
Scalia, J., concurring in judgment
of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
The Chief Justice and Justice White would grant certiorari and give the case plenary consideration.
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
Today's judgment reverses the decision below on the grounds that, in deciding not to apply the "manifest injustice" exception to the law of the case, the Court of Appeals wrongfully failed to consider a newly discovered transcript from petitioner's trial. The judgment is correct, but the judgment is also not worth making, serving no purpose but to extend the scandalous delay in the execution of a death sentence lawfully pronounced more than 18 years ago.
As a general matter, I agree with Justice Stevensí frequently recited view that "[i]t is not appropriate for this Court to expend its scarce resources crafting opinions that correct technical errors in cases of only local importance where the correction in no way promotes the development of the law." Anderson v. Harless, 459 U. S. 4, 12 (1982) (Stevens, J., dissenting). " 'To remain effective, the Supreme Court must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved.' " Board of Ed. of Rogers v. McCluskey, 458 U. S. 966, 971 (1982) (Stevens, J., dissenting) (quoting address of Chief Justice Vinson before the American Bar Association (Sept. 7, 1949)). I am willing to make an exception from that rule in capital cases—but only where there is a realistic likelihood that the "technical error" affected the conviction or the sentence. Here that is fanciful.
To begin with, the rediscovered transcript covers only the closing statements in the case, and petitioner's claim goes
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