552
Opinion of the Court
Even if the Ninth Circuit's en banc process did somehow malfunction—which is itself open to question, see 120 F. 3d, at 1067 (Kozinski, J., dissenting) ("[T]he process operated just as it's supposed to")—the court only compounded its error when it delayed further action for more than four months after the alleged misunderstandings took place. The promptness with which a court acts to correct its mistakes is evidence of the adequacy of its grounds for reopening the case. In this case, the two judges first revealed their oversights to the full court in March 1997. At that point the two judges remained free to "request that the [full] court vote to suspend" its time limits for voting to rehear the case en banc. See Ninth Circuit General Orders 11.11, at 83. They chose not to do so, instead waiting another four months to make what was, in effect, an identical request. The Court of Appeals for all practical purposes lay in wait while this Court acted on the petition for certiorari, the State scheduled a firm execution date for Thompson, and the Governor conducted an exhaustive clemency review. Then, only two days before Thompson was scheduled to be executed, the court came forward to recall the judgment on which the State, not to mention this Court, had placed heavy reliance.
It is no answer for the Court of Appeals to assert it delayed action in the interests of comity. Comity is not limited to the judicial branch of a state government. In this case, the executive branch of California's government took extensive action in reliance on the mandate denying relief to Thompson. Rather than focus only on the California Supreme Court's interest in considering Thompson's fourth (and, as could be predicted, meritless) state habeas petition, the Court of Appeals should have considered as well the more vital interests of California's executive branch.
It would be the rarest of cases where the negligence of two judges in expressing their views is sufficient grounds to frustrate the interests of a State of some 32 million persons in enforcing a final judgment in its favor. Even if this were
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