262
Scalia, J., dissenting
this Court, see Act of Mar. 10, 1908, ch. 76, 35 Stat. 40. In 1925, this requirement was extended to intermediate appellate proceedings, see Act of Feb. 13, 1925, ch. 229, §§ 6(d), 13, 43 Stat. 940, 942. Before 1925, this Court readily concluded it had no jurisdiction over appeals brought before it in the absence of a certificate, see, e. g., Bilik v. Strassheim, 212 U. S. 551 (1908); Ex parte Patrick, 212 U. S. 555 (1908), and House interpreted the 1925 amendment to produce the same effect in the courts of appeals and, consequently, in this Court under the predecessor to § 1254(1). Quite obviously, with House on the books—neither overruled nor even cited in the later opinions that the Court claims "disregarded" it— Congress presumably anticipated that § 102 of AEDPA would be interpreted in the same manner.3 In yet another striking departure from our ordinary practice, the Court qualifies the rule that statutes are deemed to adopt the extant holdings of this Court, see Keene Corp. v. United States, 508 U. S. 200, 212 (1993): They will not be deemed to adopt them, the Court says, when legal commentators "question
3 The Court points to the fact that another provision of AEDPA, which requires court of appeals authorization before a state prisoner can file a second or successive habeas petition in district court, specifically states that the denial of the authorization "shall not be appealable and shall not be the subject of a petition . . . for a writ of certiorari." 28 U. S. C. § 2244(b)(3)(E) (1994 ed., Supp. II). This provision, the Court says, would be rendered "superfluous" if we followed House, ante, at 249. That is not so. Section 2244(b)(3) addresses whether there will be district-court consideration of a second or successive petition at all, not whether the district court's consideration may be reviewed by an appellate court. Only the latter is covered by the holding of House. It is true enough that the reasoning of House, if carried over to the other question, would produce the same result; but Congress's specification of that result when there is no Supreme Court holding precisely in point would more accurately be described as cautious than superfluous. Indeed, the greater relevance of § 2244(b)(3) to the question before us is this: It would be exceedingly strange to foreclose certiorari review of the denial of all federal intervention, as that provision does, while according certiorari review of the denial of appeal from the federal district court to the court of appeals.
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