Cite as: 513 U. S. 298 (1995)
Scalia, J., dissenting
467, 495 (1991) ("Kuhlmann . . . required federal courts to entertain successive petitions when a petitioner supplements a constitutional claim with a 'colorable showing of factual innocence' "). But if we are to lavish upon the verbiage of our opinions the detailed attention more appropriately reserved for the statute itself, more of the cases (and some of the same cases) have described the miscarriage-of-justice doctrine as a rule of permission rather than a rule of obligation. See, e. g., Sawyer v. Whitley, 505 U. S. 333, 339 (1992) ("[Kuhlmann held that] the miscarriage of justice exception would allow successive claims to be heard"); Mc-Cleskey, 499 U. S., at 494 ("Federal courts retain the authority to issue the writ [in cases of fundamental miscarriage of justice]"); id., at 494-495 ("If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim"); Murray v. Carrier, 477 U. S. 478, 496 (1986) ("[W]here a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default") (emphasis added in all quotations).
Of course the latter cases provide as much or as little authority for the right reading of the statute as the former provide for the wrong reading. The truth is that there is simply nothing in this scattering of phrases, this handful of silences and assumptions, by which even the conscience most scrupulous in matters of stare decisis could count itself bound either way; for in no case after Kuhlmann has the question whether § 2244(b) creates an obligation to entertain successive or abusive petitions been necessary to the decision. In both Sawyer and McCleskey the Court affirmed the judgments of lower courts that had dismissed the petition. See Sawyer, supra, at 338; McCleskey, supra, at 503. Those decisions could not, and did not, announce as a
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