Cite as: 523 U. S. 637 (1998)
Scalia, J., dissenting
habeas on other issues—is to say that state-court determinations must always be reviewable, not merely by this Court, but by federal district courts. That is indeed the principle that this Court's imaginative habeas-corpus jurisprudence had established, but it is not a principle of natural law. Lest we forget, Congress did not even have to create inferior federal courts, U. S. Const., Art. I, § 8, cl. 9; Art. III, § 1, let alone invest them with plenary habeas jurisdiction over state convictions. And for much of our history, as Justice Thomas points out, post, at 652, prisoners convicted by validly constituted courts of general criminal jurisdiction had no recourse to habeas corpus relief at all. See Wright v. West, 505 U. S. 277, 285-286 (1992) (opinion of Thomas, J.).
It seems to me much further removed from the "perverse" to deny second-time collateral federal review than it is to treat state-court proceedings as nothing more than a procedural prelude to lower-federal-court review of state supreme-court determinations. The latter was the regime that our habeas jurisprudence established and that the Anti-terrorism and Effective Death Penalty Act (AEDPA) intentionally revised—to require extraordinary showings before a state prisoner can take a second trip around the extended district-court-to-Supreme-Court federal track. It is wrong for us to reshape that revision on the very lathe of judge-made habeas jurisprudence it was designed to repair.
Today's opinion resembles nothing so much as the cases of the 1920's that effectively decided that the Clayton Act, designed to eliminate federal-court injunctions against union strikes and picketing, "restrained the federal courts from nothing that was previously proper." T. Powell, The Supreme Court's Control Over the Issue of Injunctions in Labor Disputes, 13 Acad. Pol. Sci. Proc. 37, 74 (1928). In criticizing those cases as examples of Gefühlsjurisprudenz (and in insisting upon "the necessity of preferring . . . the Gefühl of the legislator to the Gefühl of the judge"), Dean Landis recalled Dicey's trenchant observation that " 'judge-
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