258
Scalia, J., dissenting
(CA7 1997). It is this unique screening function that distinguishes a COA from the jurisdictional issues discussed by the Court: Section 102 of AEDPA prevents petitioner's case from entering the Court of Appeals at all in the absence of a COA, whereas other jurisdictional determinations are made after a case is in the Court of Appeals (even if the case is later dismissed because of jurisdictional defects), ante, at 246- 249. See Rosado v. Wyman, 397 U. S. 397, 403, n. 3 (1970) (a court always has jurisdiction to determine its jurisdiction).
The Court's only response to these arguments is that they are foreclosed by our precedent, since we decided an analogous issue in Ex parte Quirin, 317 U. S. 1 (1942). Ante, at 246. (The Court displays no appreciation of the delicious irony involved in its insistence upon hewing to an allegedly analogous decision while overruling the case directly in point, House.) Quirin held that a petition for habeas corpus constituted the institution of a suit, and that it was not necessary for the writ to issue for the matter to be considered a case or controversy. 317 U. S., at 24. Quirin relied upon our decision in Ex parte Milligan, 4 Wall. 2, 110-113 (1866), which reasoned that a petition for habeas corpus is a suit because the petitioner seeks " 'that remedy which the law affords him' " to recover his liberty. Id., at 113 (quoting Weston v. City Council of Charleston, 2 Pet. 449, 464 (1829)). Petitioner's request for § 2255 relief is analogous to a petition for habeas corpus, but his request for a COA is of a wholly different nature. That is no "remedy" for any harm, but a threshold procedural requirement that petitioner must meet in order to carry his § 2255 suit to the appellate stage. That is why the Court in House, decided less than three years after Quirin, did not treat the application for a certificate as a separate case but did recognize the petition for habeas corpus as a case even though it was decided without a hearing or a call for a return. 324 U. S., at 43.
I have described above why House was entirely correct, but a few words are in order concerning the inappropriate-
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