Trevino v. Thaler, Oral arguments

MR. OLDHAM: Well, Your Honor, I think you could do one of two things. You could always certify the question with the Court of Criminal Appeals if you thought that the question -- that the answer turns on what the Texas procedures are and that the parties disagree with them.

JUSTICE BREYER: I tried that once in a case involving Pennsylvania, and the result was such that I resolved never to do it again.


JUSTICE BREYER: But -- but don't say never. All right. So one thing we got --

JUSTICE ALITO: That was a case in which -- that was the case in which the Court unwisely reversed a certain Third Circuit decision.

What case were Justices Breyer and Alito referring to?

1 Answer 1


A blog post tracked this to Fiore v. White, a 1999 case in which Breyer wrote an opinion certifying a question to the Pennsylvania Supreme Court, after which SCOTUS reversed the Third Circuit per curiam. The Third Circuit opinion in question was written by Circuit Judge Samuel Alito.

  • 1
    So, I went and read the opinions, and one thing I'm still missing is why Justice Breyer decided, in retrospect, it was such a bad idea; it looks like it went rather smoothly. I can think of why I think it was a bad idea (letting a state decide whether its own procedure was constitutional), but why did Justice Breyer?
    – user3309
    Commented Nov 5, 2015 at 5:29

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