It may have been easy to overlook with all that's going on this week, but on Monday Justice Thomas (joined by Justice Alito) dissented from the denial of certiorari in Davis v. Smith, a case from the U.S. Court of Appeals for the Sixth Circuit in which a divided panel granted a petition for a writ of habeas corpus in an unpublished opinion.
As I have noted many times before, the Sixth Circuit has had something of a tradition of being more generous in granting habeas petitions than the Supreme Court would like. This seems to happen less than it used to, largely due a change in the court's composition, but still happens occasionally when there is an unrepresentative panel, and that appears to have been the case here.
Justice Thomas, for his part, thinks the Sixth Circuit should corral outlier habeas decisions through rehearing en banc. Short of that, he would like the Supreme Court to act. His dissent begins:
