Intriguing sparring partners in SCOTUS comments after denial of cert in Ninth Circuit habeas case

Released today with a relatively uneventful Supreme Court order list are two short opinions in Cash v. Maxwell, a habeas case from the Ninth Circuit in which the Court denied cert review.  Justice Scalia issued this dissent, which Justice Alito joined, concluding this way (emphasis in original):

It is a regrettable reality that some federal judges like to second-guess state courts.  The only way this Court can ensure observance of Congress’s abridgement of their habeas power is to perform the unaccustomed task of reviewing utterly fact-bound decisions that present no disputed issues of law.  We have often not shrunk from that task, which we have found particularly needful with regard to decisions of the Ninth Circuit.  See, e.g., Cavazos v. Smith, 565 U. S. 1 (2011) (per curiam) (reinstating California conviction for assault on a child resulting in death); Felkner v. Jackson, 562 U. S. ___ (2011) (per curiam) (reinstating California conviction for sexual attack on a 72-year-old woman); Premo v. Moore, 562 U. S. ___ (2011) (reinstating Oregon conviction for murder of a kidnaped victim); Knowles v. Mirzayance, 556 U. S. 111 (2009) (reinstating California first-degree murder conviction); Rice v. Collins, 546 U. S. 333 (2006) (reinstating California conviction for cocaine possession); Kane v. Garcia Espitia, 546 U. S. 9 (2005) (per curiam) (reinstating California conviction for carjacking and other offenses); Yarborough v. Gentry, 540 U. S. 1 (2003) (per curiam) (reinstating California conviction for assault with a deadly weapon); Woodford v. Visciotti, 537 U. S. 19 (2002) (per curiam) (reinstating capital sentence for California prisoner convicted of first-degree murder, attempted murder, and armed robbery).  Today we have shrunk, letting stand a judgment that once again deprives California courts of that control over the State’s administration of criminal justice which federal law assures.  We should grant the petition for certiorari and summarily reverse the Ninth Circuit’s latest unsupportable §2254 judgment.

Justice Sotomayor responds with this opinion ending this way (footnote omitted):

Here, the Ninth Circuit recognized that 28 U. S. C. §2254(d)(2) imposes a “daunting standard — one that will be satisfied in relatively few cases.”  628 F. 3d, at 500 (internal quotation marks omitted). The court below found that standard met only after describing, in scrupulous detail, the overwhelming evidence supporting the conclusion that Storch falsely testified at Maxwell’s trial — attempting to manipulate the integrity of the judicial system as he did in numerous other cases.  I agree with the Ninth Circuit’s determination. But even to the extent that the dissent sees error in that determination, the Ninth Circuit conducted precisely the inquiry required by §2254(d)(2) and our precedents.  “The principal purpose of this Court’s exercise of its certiorari jurisdiction is to clarify the law.” Caperton v. A.T. Massey Coal Co., 556 U. S. 868, 902 (2009) (SCALIA, J., dissenting). Mere disagreement with the Ninth Circuit’s highly factbound conclusion is, in my opinion, an insufficient basis for granting certiorari.  See this Court’s Rule 10.

This little spitting match over a Ninth Circuit habeas grant is not only intriguing on the merits, but also notable for who keeps their tinder dry.  I am a bit surprised to see that Justice Thomas is not joining in Justice Scalia's opinion; it also seems interesting that Justice Sotomayor is a lone voice defending the work of the Ninth Circuit in this case.