In February, the Supreme Court unanimously reversed the Ninth Circuit in the case of Whorton v. Bockting, holding that Crawford v. Washington was indeed a new rule and not retroactive to cases final on appeal before it was decided.

Today, the Ninth Circuit decided 2-1 that the Nevada Supreme Court's application of the then-governing precedent of Idaho v. Wright was indeed reasonable and affirmed denial of habeas relief. Judge Noonan, author of the previous preposterous concurring opinion that Crawford was not new, now opines in dissent that the Nevada Supreme Court was unreasonable.

In theory, the reasonableness standard should guarantee that correct state court decisions are not wrongly overturned on federal habeas, a huge problem in the Ninth Circuit before AEDPA. The gap between correct and unreasonable should be large enough that no federal judge would declare unreasonable a decision that the Supreme Court later finds is correct. Regrettably, we cannot assume this will always be the case.