256
Scalia, J., dissenting
Proclaiming the request for a COA to be "in" the Court of Appeals is the most obvious of the Court's statutory distortions, but not the one with the most serious collateral consequences. The latter award goes to the Court's virtually unanalyzed pronouncement (also essential to its holding) that the request for a COA was itself a "case" within the meaning of § 1254(1). The notion that a request pertaining to a case constitutes its own "case" for purposes of § 1254 is a jaw-dropper. To support that remarkable assertion, the Court relies upon circumstantial evidence—that the "application moved through the Eighth Circuit in the same manner as cases in general do." Ante, at 242. Does this mean that a request for a COA would not be a "case" in those Circuits that treated it differently—that permitted it to be disposed of by a single judge as Rule 22 specifically allows? Does it mean that a motion for recusal, or a request for televised coverage, or a motion to file under seal would be a "case" if the court of appeals chose to treat it in the manner the Eighth Circuit treated the request for a COA here? Surely not.
An application for a COA, standing alone, does not have the requisite qualities of a legal "case" under any known definition. It does not assert a grievance against anyone, does not seek remedy or redress for any legal injury, and does not even require a "party" on the other side. It is nothing more than a request for permission to seek review. Petitioner's grievance is with respondent for unlawful custody, and the remedy he seeks is release from that custody pursuant to § 2255. The request for a COA is not some separate "case" that can subsist apart from that underlying suit; it is merely a procedural requirement that must be fulfilled before petitioner's § 2255 action—his "case" or "cause"—can advance to the appellate court. The adversity which the Court acknowledges is needed for a "case" under § 1254, see ante, at 241, is not satisfied by the dispute between petitioner and respondent as to whether the COA should be granted—
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