344
Scalia, J., dissenting
A long sentence, but not a difficult one. A federal district court that receives a second or subsequent petition for the writ of habeas corpus, when a prior petition has been denied on the merits, "need not . . . entertai[n]" (i. e., may dismiss) the petition unless it is neither (to use our shorthand terminology) successive nor abusive. See also Habeas Corpus Rule 9(b) ("A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief . . ."). Today, however, the Court obliquely but unmistakably pronounces that a successive or abusive petition must be entertained and may not be dismissed so long as the petitioner makes a sufficiently persuasive showing that a "fundamental miscarriage of justice" has occurred. Ante, at 316 ("[I]f a petitioner such as Schlup presents [adequate] evidence of innocence . . . the petitioner should be allowed to pass through the gateway and argue the merits"); ante, at 319-321.1 That conclusion flatly contradicts the statute, and is not required by our precedent.
Our earliest cases, from an era before Congress legislated rules to govern the finality of habeas adjudication, held that successive or abusive petitions were "to be disposed of in the exercise of a sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the propriety of the discharge sought," and that when weighing those considerations the district court could give "controlling weight" to "a prior refusal to discharge on a like application." Salinger v. Loisel, 265 U. S. 224, 231 (1924) (successive peti-1 The claim that "the Court does not, and need not, decide whether the fundamental miscarriage of justice exception is a discretionary remedy," ante, at 333 (O'Connor, J., concurring), is not in my view an accurate description of what the Court's opinion says. Of course the concurrence's merely making the claim causes it to be an accurate description of what the Court today holds, since the narrower ground taken by one of the Justices comprising a five-Justice majority becomes the law. Marks v. United States, 430 U. S. 188, 193 (1977).
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