252
Opinion of the Court
828). Here we have a rule of procedure that does not alter primary conduct. And what is more, the rule of procedure announced in House v. Mayo has often been disregarded in our own practice. Both Hohn and the United States cite numerous instances in which we have granted writs of certiorari to review denials of certificate applications without requiring the petitioner to move for leave to file for an extraordinary writ, as previously required by our rules, and without requiring any extraordinary showing or exhibiting any doubts about our jurisdiction to do so. 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4036, pp. 15-16 (2d ed. 1988) (collecting cases). Included among these examples are several noteworthy decisions which resolved significant issues of federal law. See, e. g., Allen v. Hardy, 478 U. S. 255, 257-258 (1986) (per curiam) (refusing to permit retroactive application of Batson v. Kentucky, 476 U. S. 79 (1986), on collateral attack); Lynce v. Mathis, 519 U. S. 433, 436 (1997) (holding the cancellation of early release credits violated the Ex Post Facto Clause). These deviations have led litigants and the legal community to question the vitality of the rule announced in House v. Mayo. As commentators have observed: "More recent cases . . . have regularly granted certiorari following denial of leave to proceed in forma pauperis, or refusal to certify probable cause, without any indication that review was by common law writ rather than statutory certiorari. At least as to these two questions, statutory certiorari should be available." Wright, Miller, & Cooper, supra, at 15-16 (footnotes omitted). Our frequent disregard for the rule announced in House v. Mayo weakens the suggestion that Congress could have placed significant reliance on it, especially in light of the commentary on our practice in the legal literature.
This is not to say opinions passing on jurisdictional issues sub silentio may be said to have overruled an opinion addressing the issue directly. See, e. g., United States v. More, 3 Cranch 159, 172 (1805) (Marshall, C. J.). Our decisions re-
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