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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 17–7505

															_________________

															VERNON MADISON, PETITIONER v. ALABAMA

															on writ of certiorari to the circuit court of
alabama, mobile county

															[February 27, 2019]

															Justice Kagan delivered the opinion of the
Court.

															The Eighth Amendment, this Court has held,
prohibits the execution of a prisoner whose mental illness prevents
him from “rational[ly] understanding” why the State seeks to impose
that punishment. Panetti v. Quarterman , 551 U.S.
930 , 959 (2007). In this case, Vernon Madison argued that his
memory loss and dementia entitled him to a stay of execution, but
an Alabama court denied the relief. We now address two questions
relating to the Eighth Amendment’s bar, disputed below but not in
this Court. First, does the Eighth Amendment forbid execution
whenever a prisoner shows that a mental disorder has left him
without any memory of committing his crime? We (and, now, the
parties) think not, because a person lacking such a memory may
still be able to form a rational understanding of the reasons for
his death sentence. Second, does the Eighth Amendment apply
similarly to a prisoner suffering from dementia as to one
experiencing psychotic delusions? We (and, now, the parties) think
so, because either condition may—or, then again, may not—impede the
requisite comprehension of his punishment. The only issue left, on
which the parties still disagree, is what those rulings mean for
Madison’s own execution. We direct that issue to the state court
for further consideration in light of this opinion.

															I

															A

															This Court decided in Ford v. Wainwright , 477 U.S.
399 (1986), that the Eighth Amendment’s ban on cruel and
unusual punishments precludes executing a prisoner who has “lost
his sanity” after sentencing. Id., at 406. While on death
row, Alvin Ford was beset by “pervasive delusion[s]” associated
with “[p]aranoid [s]chizophrenia.” Id., at 402–403.
Surveying both the common law and state statutes, the Court found a
uniform practice against taking the life of such a prisoner. See id., at 406–409. Among the reasons for that time-honored
bar, the Court explained, was a moral “intuition” that “killing one
who has no capacity” to understand his crime or punishment “simply
offends humanity.” Id., at 407, 409; see id., at 409
(citing the “natural abhorrence civilized societies feel” at
performing such an act). Another rationale rested on the lack of
“retributive value” in executing a person who has no comprehension
of the meaning of the community’s judgment. Ibid. ; see id., at 421 (Powell, J., concurring in part and concurring
in judgment) (stating that the death penalty’s “retributive
force[ ] depends on the defendant’s awareness of the penalty’s
existence and purpose”). The resulting rule, now stated as a matter
of constitutional law, held “a category of defendants defined by
their mental state” incompetent to be executed. Id., at
419.

															The Court clarified the scope of that category
in Panetti v. Quarterman by focusing on whether a
prisoner can “reach a rational understanding of the reason for
[his] execution.” 551 U. S., at 958. Like Alvin Ford, Scott
Panetti suffered from “gross delusions” stemming from “extreme
psychosis.” Id., at 936, 960. In reversing a ruling that he
could still be executed, the Panetti Court set out the
appropriate “standard for competency.” Id., at 957. Ford , the Court now noted, had not provided “specific
criteria.” 551 U. S., at 957. But Ford had explored
what lay behind the Eighth Amendment’s prohibition, highlighting
that the execution of a prisoner who cannot comprehend the reasons
for his punishment offends moral values and “serves no retributive
purpose.” 551 U. S. , at 958. Those principles, the Panetti Court explained, indicate how to identify prisoners
whom the State may not execute. The critical question is whether a
“prisoner’s mental state is so distorted by a mental illness” that
he lacks a “rational understanding” of “the State’s rationale for
[his] execution.” Id., at 958–959. Or similarly put, the
issue is whether a “prisoner’s concept of reality” is “so
impair[ed]” that he cannot grasp the execution’s “meaning and
purpose” or the “link between [his] crime and its punishment.” Id., at 958, 960.

															B

															Vernon Madison killed a police officer in 1985
during a domestic dispute. An Alabama jury found him guilty of
capital murder, and the trial court sentenced him to death. He has
spent most of the ensuing decades on the State’s death row.

															In recent years, Madison’s mental condition has
sharply deteriorated. Madison suffered a series of strokes,
including major ones in 2015 and 2016. See Tr. 19, 46–47 (Apr. 14,
2016). He was diagnosed as having vascular dementia, with attendant
disorientation and confusion, cognitive impairment, and memory
loss. See id., at 19–20, 52–54. In particular, Madison
claims that he can no longer recollect committing the crime for
which he has been sentenced to die. See Tr., Pet. Exh. 2, p. 8.

															After his 2016 stroke, Madison petitioned the
trial court for a stay of execution on the ground that he had
become mentally incompetent. Citing Ford and Panetti ,
he argued that “he no longer understands” the “status of his case”
or the “nature of his conviction and sentence.” Pet. for Suspension
in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016),
pp. 11, 14. And in a later filing, Madison emphasized that he
could not “independently recall the facts of the offense he is
convicted of.” Brief Pursuant to Order (Apr. 21, 2016), p. 8.
Alabama countered that Madison had “a rational understanding of
[the reasons for] his impending execution,” as required by Ford and Panetti , even assuming he had no memory of
committing his crime. Brief on Madison’s Competency (April 21,
2016), pp. 4–5, 8. And more broadly, the State claimed that
Madison could not possibly qualify as incompetent under those two
decisions because both “concerned themselves with ‘[g]ross
delusions’ ”—which all agree Madison does not have. Id., at 2; see ibid. (Madison “failed to implicate” Ford and Panetti because he “does not suffer from
psychosis or delusions”).

															Expert reports from two psychologists largely
aligned with the parties’ contending positions. Dr. John Goff,
Madison’s expert, found that although Madison “underst[ood] the
nature of execution” in the abstract, he did not comprehend the
“reasoning behind” Alabama’s effort to execute him . Tr.,
Pet. Exh. 2 (Apr. 14, 2016), p. 8; see id., at 9. Goff
stated that Madison had “Major Vascular Neurological Disorder”—also
called vascular dementia—which had caused “significant cognitive
decline.” Ibid. And Goff underscored that Madison
“demonstrate[d] retrograde amnesia” about his crime, meaning that
he had no “independent recollection[ ]” of the murder. Id., at 8; see id., at 9. For his part, Dr. Karl Kirkland, the
court-appointed expert, reported that Madison “was able to discuss
his case” accurately and “appear[ed] to understand his legal
situation.” Tr., Ct. Exh. 1, pp. 10–11. Although Kirkland
acknowledged that Madison’s strokes had led to cognitive decline,
see id., at 10, the psychologist made no men- tion of
Madison’s diagnosed vascular dementia. Rather, Kirkland highlighted
that “[t]here was no evidence of psychosis, paranoia, or delusion.” Id., at 9; see ibid. (Madison “did not seem
delusional at all”).

															At a competency hearing, Alabama similarly
stressed Madison’s absence of psychotic episodes or delusions. The
State asked both experts to affirm that Madison was “neither
delusional [n]or psychotic.” Tr. 56; see id. , at 22. And its
closing argument focused on their agreement that he was not. As the
State summarized: “He’s not psychotic. He’s not delusional.” Id. , at 81. On the State’s view, that fact answered the
competency question because “[t]he Supreme Court is looking at
whether someone’s delusions or someone’s paranoia or someone’s
psychosis is standing in the way of” rationally understanding his
punishment. Id. , at 82. Madison’s counsel disputed that
point. “[T]he State would like to say, well, he’s not delusional,
he’s not psychotic,” the attorney recapped. Id. , at 83. But,
she continued, “[t]hat’s not really the criteria” under Panetti . Tr. 83. Rather, the Court there barred executing a
person with any mental illness—“dementia” and “brain injuries” no
less than psychosis and delusions—that prevents him from
comprehending “why he is being executed.” Ibid. The trial court found Madison competent to be
executed. Its order first recounted the evidence given by each
expert witness. The summary of Kirkland’s report and testimony
began by stating that the psychologist had “found no evidence of
paranoia[,] delusion [or] psychosis.” Order (Apr. 29, 2016),
p. 5 (2016 Order). The court then noted Kirkland’s view that
Madison could “give details of the history of his case” and
“appear[ed] to understand his legal situation.” Ibid .
Turning to the Goff report, the court noted the expert’s finding
that Madison was “amnesic” and could not recollect his crime. Id., at 6; see id., at 7. In a single, final
paragraph, the court provided both its ruling and its reasoning.
Madison had failed to show, the court wrote, that he did not
“rationally understand the punishment he is about to suffer and why
he is about to suffer it.” Id., at 10. The court “accept[ed]
the testimony of Dr. Kirkland as to the understanding Madison has
concerning the situation.” Ibid. “Further,” the court
concluded, “the evidence does not support that Mr. Madison is
delusional.” Ibid. Madison next sought habeas relief in federal
court, where he faced the heavy burden of showing that the
state-court ruling “involved an unreasonable application of[ ]
clearly established federal law” or rested on an “unreasonable
determination of the facts.” Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d). The
District Court rejected his petition, but the Court of Appeals for
the Eleventh Circuit ruled that Madison had demonstrated both kinds
of indisputable error. See Madison v. Commissioner ,
851 F.3d 1173 (2017). This Court then summarily reversed the
appeals court’s decision. See Dunn v. Madison , 583
U. S. ___ (2017) ( per curiam ). We explained, contrary
to the Eleventh Circuit’s principal holding, that “[n]either Panetti nor Ford ‘clearly established’ that a
prisoner is incompetent to be executed” because of a simple failure
to remember his crime. Id., at ___ (slip op., at 4). And we
found that the state court did not act unreasonably—otherwise put,
did not err “beyond any possibility for fairminded
disagreement”—when it found that Madison had the necessary
understanding to be executed. Ibid. (internal quotation
marks omitted). But we made clear that our decision was premised on
AEDPA’s “demanding” and “deferential standard.” Id., at ___,
___ (slip op., at 3, 4). “We express[ed] no view” on the question
of Madison’s competency “outside of the AEDPA context.” Id., at ___ (slip op., at 4).[ 1 ]

															When Alabama set an execution date in 2018,
Madison returned to state court to argue again that his mental
condition precluded the State from going forward. In his petition,
Madison reiterated the facts and arguments he had previously
presented to the state court. But Madison also claimed that since
that court’s decision (1) he had suffered further cognitive decline
and (2) a state board had suspended Kirkland’s license to practice
psychology, thus discrediting his prior testimony. See Pet. to
Suspend Execution in No. CC–85–1385.80 (C. C. Mobile Cty., Ala.,
Dec. 18, 2017), pp. 1–2, 16–19.[ 2 ] Alabama responded that nothing material had changed
since the court’s first competency hearing. See Motion to Dismiss
(Dec. 20, 2017), p. 9. The State also repeated its argument
that Panetti permits executing Madison, pointing to the
experts’ agreement that he is “not delusional or psychotic” and
asserting that neither “memory impairment [n]or dementia [could]
suffice to satisfy the Panetti and Ford standards”
without “an expansion” of those decisions. Motion to Dismiss 4, 10.
A week before the scheduled execution, the state court again found
Madison mentally competent. Its brief order stated only that
Madison “did not provide a substantial threshold showing of
insanity[ ] sufficient to convince this Court to stay the
execution.” App. A to Pet. for Cert.

															Madison then filed in this Court a request to
stay his execution and a petition for certiorari. We ordered the
stay on the scheduled execution date and granted the petition a few
weeks later. See 583 U. S. ___, ___ (2018). Because the case
now comes to us on direct review of the state court’s decision
(rather than in a habeas proceeding), AEDPA’s deferential standard
no longer governs. (And for that reason—contrary to the dissent’s
suggestion, post , at 12—our decision on Madison’s habeas
petition cannot help resolve the questions raised here.)

															II

															Two issues relating to Panetti ’s
application are before us. Recall that our decision there held the
Eighth Amendment to forbid executing a prisoner whose mental
illness makes him unable to “reach a rational understanding of the
reason for [his] execution.” 551 U. S., at 958; see supra, at 2–3. The first question presented is whether Panetti prohibits executing Madison merely because he cannot
remember committing his crime. The second question raised is
whether Panetti permits executing Madison merely because he
suffers from dementia, rather than psychotic delusions.[ 3 ] In prior stages of this case, as we
have described, the parties disagreed about those matters. See supra, at 4–8. But at this Court, Madison accepted Alabama’s
positon on the first issue and Alabama accepted Madison’s on the
second. See, e.g. , Tr. of Oral Arg. 11, 36. And rightly so.
As the parties now recognize, the standard set out in Panetti supplies the answers to both questions. First, a
person lacking memory of his crime may yet rationally understand
why the State seeks to execute him; if so, the Eighth Amendment
poses no bar to his execution. Second, a person suffering from
dementia may be unable to rationally understand the reasons for his
sentence; if so, the Eighth Amendment does not allow his execution.
What matters is whether a person has the “rational understanding” Panetti requires—not whether he has any particular memory or
any particular mental illness.

															A

															Consider initially a person who cannot
remember his crime because of a mental disorder, but who otherwise
has full cognitive function. The memory loss is genuine: Let us say
the person has some kind of amnesia, which has produced a black
hole where that recollection should be. But the person remains
oriented in time and place; he can make logical connections and
order his thoughts; and he comprehends familiar concepts of crime
and punishment. Can the State execute him for a murder? When we
considered this case before, using the deferential standard
applicable in habeas, we held that a state court could allow such
an execution without committing inarguable error. See Madison , 583 U. S., at ___ (slip op., at 4) (stating
that no prior decision had “clearly established” the opposite); supra, at 6. Today, we address the issue straight-up, sans
any deference to a state court. Again, is the failure to remember
committing a crime alone enough to prevent a State from executing a
prisoner?

															It is not, under Panetti ’s own terms.
That decision asks about understanding, not memory—more
specifically, about a person’s understanding of why the State seeks
capital punishment for a crime, not his memory of the crime itself.
And the one may exist without the other. Do you have an independent
recollection of the Civil War? Obviously not. But you may still be
able to reach a rational—indeed, a sophisticated—understanding of
that conflict and its consequences. Do you recall your first day of
school? Probably not. But if your mother told you years later that
you were sent home for hitting a classmate, you would have no
trouble grasping the story. And similarly, if you somehow blacked
out a crime you committed, but later learned what you had done, you
could well appreciate the State’s desire to impose a penalty.
Assuming, that is, no other cognitive impairment, loss of memory of
a crime does not prevent rational understanding of the State’s
reasons for resorting to punishment. And that kind of comprehension
is the Panetti standard’s singular focus.

															The same answer follows from the core
justifications Panetti offered for framing its Eighth
Amendment test as it did. Echoing Ford, Panetti reasoned
that execution has no retributive value when a prisoner cannot
appreciate the meaning of a community’s judgment. See 551
U. S., at 958–959 (citing 477 U. S., at 407–408); supra, at 3. But as just explained, a person who can no
longer remember a crime may yet recognize the retributive message
society intends to convey with a death sentence. Similarly, Ford and Panetti stated that it “offends humanity” to
execute a person so wracked by mental illness that he cannot
comprehend the “meaning and purpose of the punishment.” 477
U. S., at 407; 551 U. S., at 960; see id., at 958.
But that offense to morality must be much less when a person’s
mental disorder causes nothing more than an episodic memory loss.
Moral values do not exempt the simply forgetful from punishment,
whatever the neurological reason for their lack of recall.

															But such memory loss still may factor into the
“rational understanding” analysis that Panetti demands. If
that loss combines and interacts with other mental shortfalls to
deprive a person of the capacity to comprehend why the State is
exacting death as punishment, then the Panetti standard will
be satisfied. That may be so when a person has difficulty
preserving any memories, so that even newly gained knowledge
(about, say, the crime and punishment) will be quickly forgotten.
Or it may be so when cognitive deficits prevent the acquisition of
such knowledge at all, so that memory gaps go forever
uncompensated. As Panetti indicated, neurologists,
psychologists, and other experts can contribute to a court’s
understanding of issues of that kind. See id. , at 962. But
the sole inquiry for the court remains whether the prisoner can
rationally understand the reasons for his death sentence.

															B

															Next consider a prisoner who suffers from
dementia or a similar disorder, rather than psychotic delusions.
The dementia, as is typical, has compromised this prisoner’s
cognitive functions. But it has not resulted in the kind of
delusional beliefs that Alvin Ford and Scott Panetti held. May the
prisoner nonetheless receive a stay of execution under Ford and Panetti ? Or instead, is a delusional disorder a
prerequisite to declaring a mentally ill person incompetent to be
executed? We did not address that issue when we last considered
this case, on habeas review; in that sense, the question is one of
first impression. See supra, at 6, n. 1.

															But here too, Panetti has already
answered the question. Its standard focuses on whether a mental
disorder has had a particular effect : an inability to
rationally understand why the State is seeking execution. See supra, at 2–3. Conversely, that standard has no interest in
establishing any precise cause : Psychosis or dementia,
delusions or overall cognitive decline are all the same under Panetti , so long as they produce the requisite lack of
comprehension. To be sure, Panetti on occasion spoke of
“gross delusions” in explaining its holding. 551 U. S., at
960. And similarly, Ford talked about the “insane,” which
sometimes refers to persons holding such irrational beliefs. See, e.g., 477 U. S., at 401, 410.[ 4 ] But those references are no more than a predictable
byproduct of the two cases’ facts. At the same time (and
interchangeably), Panetti used more inclusive terms, such as
“mental illness,” “mental disorder,” and “psychological
dysfunction.” 551 U. S., at 936, 959, 960; see Ford ,
477 U. S., at 408–409, n. 2 (referring to prisoners with
“mental illness”). And most important, Panetti framed its
test, as just described, in a way utterly indifferent to a
prisoner’s specific mental illness. The Panetti standard
concerns, once again, not the diagnosis of such illness, but a
consequence—to wit, the prisoner’s inability to rationally
understand his punishment.

															And here too, the key justifications Ford and Panetti offered for the Eighth Amendment’s bar confirm
our conclusion about its reach. As described above, those decisions
stated that an execution lacks retributive purpose when a mentally
ill prisoner cannot understand the societal judgment underlying his
sentence. See Panetti , 551 U. S., at 958–959; Ford , 477 U. S., at 409; supra, at 2–3. And they
indicated that an execution offends morality in the same
circumstance. See 551 U. S., at 958, 960; 477 U. S., at
409; supra, at 2–3. Both rationales for the constitutional
bar thus hinge (just as the Panetti standard deriving from
them does) on the prisoner’s “[in]comprehension of why he has been
singled out” to die. 477 U. S., at 409; see supra, at
2–3. Or said otherwise, if and when that failure of understanding
is present, the rationales kick in—irrespective of whether one
disease or another (say, psychotic delusions or dementia) is to
blame.

															In evaluating competency to be executed, a judge
must therefore look beyond any given diagnosis to a downstream
consequence. As Ford and Panetti recognized, a
delusional disorder can be of such severity—can “so impair the
prisoner’s concept of reality”—that someone in its thrall will be
unable “to come to grips with” the punishment’s meaning. Panetti , 551 U. S., at 958; Ford , 477
U. S., at 409. But delusions come in many shapes and sizes,
and not all will interfere with the understanding that the Eighth
Amendment requires. See Panetti , 551 U. S. , at
962 (remanding the case to consider expert evidence on whether the
prisoner’s delusions did so). And much the same is true of
dementia. That mental condition can cause such disorientation and
cognitive decline as to prevent a person from sustaining a rational
understanding of why the State wants to execute him. See supra, at 11–12. But dementia also has milder forms, which
allow a person to preserve that understanding. Hence the need—for
dementia as for delusions as for any other mental disorder—to
attend to the particular circumstances of a case and make the
precise judgment Panetti requires.

															III

															The only question left—and the only one on
which the parties now disagree—is whether Madison’s execution may
go forward based on the state court’s decision below. Madison’s
counsel says it cannot because that ruling was tainted by legal
error—specifically, the idea that only delusions, and not dementia,
can support a finding of mental incompetency. See Tr. of Oral Arg.
12, 21, 25, 27. Alabama counters that the state court did not rely
on that (concededly) incorrect view of the law. See id. , at
37–41. But we come away at the least unsure whether that is
so—especially given Alabama’s evidence and arguments in the state
court.

															As noted earlier, the 2018 ruling we review
today contains only one sentence of explanation. See supra, at 7–8. It states that Madison “did not provide a substantial
threshold showing of insanity[ ] sufficient to convince this Court
to stay the execution.” App. A to Pet. for Cert. If the state court
used the word “insanity” to refer to a delusional disorder, then
error occurred: The court would have denied a stay on the ground
that Madison did not have that specific kind of mental illness. And
the likelihood that the court made that mistake is heightened by
the State’s emphasis, at that stage of the proceedings (as at
others), that Madison was “not delusional or psychotic” and that
“dementia” could not suffice to bar his execution absent “an
expansion of Ford and Panetti .” Motion to Dismiss 4,
10; see supra, at 4–8; but see post, at 9–10, and
n. 4 (disregarding those arguments).[ 5 ] Alabama argues, however, that the court spoke of
“insanity” only because the state statute under which Madison
sought relief uses that term. See Tr. of Oral Arg. 37; Ala. Code
§15–16–23 (2011) (allowing a stay of execution “on account of the
[convict’s] insanity”). But even if so, that does not advance the
State’s view that the state court properly understood the Eighth
Amendment bar when assessing Madison’s competency. Alabama told
this Court in opposing certiorari that its statute covers only
those with delusional disorders, and not those with dementia. See
Brief in Opposition 12 (“[T]he sole question to be answered under
the state statute was whether Madison was insane, not whether he
suffered from dementia”). The state court’s (supposed) echoing of
statutory language understood in that way cannot provide assurance
that the court knew a person with dementia might receive a stay of
execution; indeed, it suggests exactly the opposite. The court’s
2018 order thus calls out for a do-over.

															Alabama further contends, however, that we
should look past the state court’s 2018 decision to the court’s
initial 2016 determination of competency. (The dissent similarly
begins with the 2016 ruling, see post, at 6–7, even though
that is not the decision under review here.) According to the
State, nothing material changed in the interim period, see supra, at 7; thus, we may find the meaning of the later
ruling in the earlier one, see Tr. of Oral Arg. 36–37. And, the
State continues, the 2016 opinion gets the law right. Alabama’s
proof is that the court, after summarizing the psychologists’
testimony, found that “Madison has a rational[ ]
understanding, as required by Panetti ,” concerning the
“punishment he is about to suffer and why he is about to suffer
it.” 2016 Order, at 10; see Tr. of Oral Arg. 39; supra, at
5–6. (The dissent quotes the same passage. See post, at
7.)

															But the state court’s initial decision does not
aid Alabama’s cause. First, we do not know that the court in 2018
meant to incorporate everything in its prior opinion. The order
says nothing to that effect; and though it came out the same way as
the earlier decision, it need not have rested on all the same
reasoning. Second, the 2016 opinion itself does not show that the
state court realized that persons suffering from dementia could
satisfy the Panetti standard. True enough, as Alabama says,
that the court accurately stated that standard in its decision. But
as described above, Alabama had repeatedly argued to the court
(over Madison’s objection) that only prisoners suffering from
delusional disorders could qualify as incompetent under Panetti . See, e.g., Brief on Madison’s Competency 2
(Madison “failed to implicate” Ford and Panetti because he “does not suffer from psychosis or delusions”); Tr. 82
(“The Supreme Court [in Panetti ] is looking at whether
someone’s delusions or someone’s paranoia or someone’s psychosis is
standing in the way of” rationally understanding his punishment);
see also supra, at 4–5; but see post, at 9–10, and
n. 4 (disregarding those arguments). And Alabama relied on the
expert opinion of a psychologist who highlighted Madison’s lack of
“psychosis, paranoia, or delusion,” while never mentioning his
dementia. Tr., Ct. Exh. 1 (Apr. 14, 2016), p. 9. That too-limited
understanding of Panetti ’s compass is reflected in the
court’s 2016 opinion. In its single paragraph of analysis, the
court “accept[ed] the testimony” of the State’s preferred
psychologist.[ 6 ] And the court
further found that “the evidence does not support that Mr. Madison
is delusional”—without ever considering his undisputed dementia.
2016 Order, at 10.

															For those reasons, we must return this case to
the state court for renewed consideration of Madison’s competency
(assuming Alabama sets a new execution date). See, e.g., Kindred
Nursing Centers L. P. v. Clark , 581 U. S. ___, ___
(2017) (slip op., at 9) (remanding when “uncertain” whether “an
impermissible taint occurred”); Clemons v. Mississippi , 494 U.S.
738 , 751–752 (1990) (similar). In that proceeding, two matters
disputed below should now be clear. First, under Ford and Panetti, the Eighth Amendment may permit executing Madison
even if he cannot remember committing his crime. Second, under
those same decisions, the Eighth Amendment may prohibit executing
Madison even though he suffers from dementia, rather than
delusions. The sole question on which Madison’s competency depends
is whether he can reach a “rational understanding” of why the State
wants to execute him. Panetti , 551 U. S., at 958. In
answering that question—on which we again express no view, see supra, at 6—the state court may not rely on any arguments or
evidence tainted with the legal errors we have addressed. And
because that is so, the court should consider whether it needs to
supplement the existing record. Some evidence in that record,
including portions of the experts’ reports and testimony, expressly
reflects an incorrect view of the relevance of delusions or memory;
still other evidence might have implicitly rested on those same
misjudgments. The state court, we have little doubt, can evaluate
such matters better than we. It must do so as the first step in
assessing Madison’s competency—and ensuring that if he is to be
executed, he understands why.

															We accordingly vacate the judgment of the state
court and remand the case for further proceedings not inconsistent
with this opinion.

															It is so ordered.

															Justice Kavanaugh took no part in the
consideration or decision of this case. Notes 1 Neither did we opine
on—or even mention—the subsidiary legal question whether a mental
disorder other than delusions may render a person incompetent to be
executed. Alabama told the Eleventh Circuit that it could not, thus
reprising the claim the State had made in the trial court. See Madison , 851 F. 3d, at 1188 (describing Alabama’s
argument that “only a prisoner suffering from gross delusions can
show incompetency under Panetti ”); Recording of Oral Arg. in
No. 16–12279 (CA11, June 23, 2016), at 26:36–26:45 (“In this case,
what we have is someone who claims to have a mental illness,
dementia,” but does not have “delusions, which is what Panetti requires”); id., at 26:48–27:21 (When asked
if someone with “severe dementia” but no delusions could be
executed, the State responded “I think so because . . .
they don’t have delusions”). (Alabama alternatively argued
that the state court’s decision was not based on that view, see
Brief for Appellee in No. 16–12279 (CA11), pp. 37–38; the
quotations the dissent picks out, see post, at 10,
n. 4, come from that additional argument.) The Eleventh
Circuit rejected the State’s contention that dementia could not
preclude an execution as “inconsistent with the principles
underlying” Ford and Panetti . 851 F. 3d, at
1188. But we had no reason to address that holding in light of the
errors we saw in other parts of the appeals court’s
analysis. 2 As Madison’s petition
recounted, the license suspension followed the opening of a
criminal investigation into whether Kirkland had committed
narcotics offenses. See Pet. to Suspend Execution
17–19. 3 The dissent is in high
dudgeon over our taking up the second question, arguing that it was
not presented in Madison’s petition for certiorari. See post, at 1–6. But that is incorrect. The petition presented
two questions—the same two we address here. The first question
asked whether the Eighth Amendment bars executing Madison because
he has no “memory of his commission of the capital offense.” Pet.
for Cert. iii. The second question asked whether that Amendment
bars his execution because his “vascular dementia” and “severe
cognitive dysfunction” prevent him from either remembering his
crime “or understanding the circumstances of his scheduled
execution.” Ibid. So the first question concerned whether
memory loss alone could form the basis of a Panetti claim
and the second whether the varied consequences of dementia could do
so. The body of the petition, to be sure, devoted more space to the
first question. But it clearly referenced the second. See Pet. for
Cert. 18 (“[T]his Court has never sought to constrain the world of
maladies that can give rise to a finding that a prisoner is
incompetent to be executed”); id., at 25 (“[C]ourts have
recognized dementia and attendant cognitive decline and memory
impairment as a basis for a finding of incompetency to be
executed”). And in any event, the number of words spent on each is
not what matters. Our Rule states that the Court will consider
“[o]nly the questions set out in the petition, or fairly included
therein.” This Court’s Rule 14.1(a). Here, we consider, in order,
the two questions set out in Madison’s petition. 4 Alternatively, however,
the term may also be used to encompass persons with other mental
conditions, so long as they are “severe enough [to] prevent[ ]
a person from having legal capacity and excuse[ ] the person from
criminal or civil responsibility.” Black’s Law Dictionary 914 (10th
ed. 2014). In that different understanding, “insanity” connotes a
general standard of legal competency rather than a more limited
description of delusional disorders. 5 The State once again
repeated that argument in its Brief in Opposition to Madison’s
certiorari petition. See Brief in Opposition 11–12 (“Madison does
not argue that he is insane. Instead, he argues that he suffers
from dementia” and that his execution should be barred “under a
yet-unannounced expansion of Ford and Panetti ”). 6 The court well understood
that expert’s exclusive focus on whether Madison had psychotic
delusions. In summarizing his testimony, the court began as
follows: “Dr. Kirkland in his exam found no evidence of paranoia or
delusion at the time of his examin[ation], on March 31, 2016. He
also found that there was no psychosis present.” 2016 Order, at 5;
see supra, at 5. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 17–7505

															_________________

															VERNON MADISON, PETITIONER v. ALABAMA

															on writ of certiorari to the circuit court of
alabama, mobile county

															[February 27, 2019]

															Justice Alito, with whom Justice Thomas and
Justice Gorsuch join, dissenting.

															What the Court has done in this case makes a
mockery of our Rules.

															Petitioner’s counsel convinced the Court to stay
his client’s execution and to grant his petition for a writ of
certiorari for the purpose of deciding a clear-cut constitutional
question: Does the Eighth Amendment prohibit the execution of a
murderer who cannot recall committing the murder for which the
death sentence was imposed? The petition strenuously argued that
executing such a person is unconstitutional.

															After persuading the Court to grant review of
this question, counsel abruptly changed course. Perhaps because he
concluded (correctly) that petitioner was unlikely to prevail on
the question raised in the petition, he conceded that the argument
advanced in his petition was wrong, and he switched to an entirely
different argument, namely, that the state court had rejected
petitioner’s claim that he is incompetent to be executed because
the court erroneously thought that dementia, as opposed to other
mental conditions, cannot provide a basis for such a claim. See
Brief for Petitioner 16.

															This was not a question that the Court agreed to
hear; indeed, there is no mention whatsoever of this argument in
the petition—not even a hint. Nor is this question fairly included
within those on which the Court granted review. On the contrary, it
is an entirely discrete and independent question.

															Counsel’s tactics flagrantly flouted our Rules.
Our Rules make it clear that we grant certiorari to decide the
specific question or questions of law set out in a petition for
certiorari. See this Court’s Rule 14.1(a) (“Only the questions set
out in the petition, or fairly included therein, will be considered
by the Court”). Our whole certiorari system would be thrown into
turmoil if we allowed counsel to obtain review of one question and
then switch to an entirely different question after review is
granted. In the past when counsel have done this, we have dismissed
the writ as improvidently granted. See, e.g., Visa,
Inc. v. Osborn , 580 U. S. ___ (2016); City and
County of San Francisco v. Sheehan , 575 U. S. ___
(2015). We should do that here.

															Instead, the majority rewards counsel’s trick.
It vacates the judgment below because it is unsure whether the
state court committed the error claimed in petitioner’s merits
brief. But not only was there no trace of this argument in the
petition, there is nothing in the record showing that the state
court ever adopted the erroneous view that petitioner claims it
took.

															I

															The question on which we granted review was an
outgrowth of our per curiam decision in Dunn v. Madison , 583 U. S. ___ (2017), which concerned an
Eleventh Circuit decision granting petitioner federal habeas
relief. Prior to that decision, this Court had held in Ford v. Wainwright , 477 U.S.
399 (1986), that the Eighth Amendment prohibits the execution
of a person who is “insane,” and in Panetti v. Quarterman , 551 U.S.
930 (2007), the Court elaborated on this rule, explaining that
a person cannot be executed if he lacks a rational understanding of
the reason for the execution. The Eleventh Circuit interpreted
those cases to mean that petitioner could not be executed because
he did not remember killing his victim, Mobile, Alabama, police
officer Julius Schulte.

															We summarily reversed. Under the relevant
provision of the federal habeas statute, 28 U. S. C.
§2254(d), which was enacted as part of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), petitioner could not
obtain federal habeas relief unless the state court’s rejection of
his memory-loss claim represented an unreasonable application of
federal law as clearly established at the time by decisions of this
Court. We held that neither Ford nor Panetti clearly
established that a person cannot be executed if he does not
remember committing the crime for which the death sentence was
imposed.

															Our opinion stated, however, that it
“express[ed] no view on the merits of the underlying question
outside of the AEDPA context.” Dunn , 583 U. S., at ___
(slip op., at 4). And a concurring opinion authored by Justice
Ginsburg and joined by Justices Breyer and Sotomayor teed up this
question for review in a later case. Id., at ___ (slip op.,
at 1) (“The issue whether a State may administer the death penalty
to a person whose disability leaves him without memory of his
commission of a capital offense is a substantial question not yet
addressed by the Court. Appropriately presented, the issue would
warrant full airing”).

															Taking this cue, petitioner then sought relief
in state court based on his inability to remember his crime, and
when that effort failed, he filed the petition at issue now.

															II

															The centerpiece of the petition and
petitioner’s 11th-hour application for a stay of execution[ 1 ] was the argument that he could not
constitutionally be executed because he did not remember killing
Officer Schulte. The petition repeatedly noted petitioner’s
inability to remember his crime. See Pet. for Cert. i, iii, 1, 2,
8, 10, 11, 12, 18, 22, 23, 25, 26, 27, 28. And the petition was
very clear about the question on which review was sought:

															“[T]his case presents this Court with the
appropriate vehicle to consider the substantial question of whether
the execution of a prisoner with no memory of the underlying
offense is consistent with the evolving standards of decency
inherent in this Court’s Eighth Amendment jurisprudence.” Id., at 2.

															This same point was made time and again:

															●“[B]ecause [petitioner’s] disability renders
him unable to remember the underlying offense for which he is to be
punished, his execution does not comport with the evolving
standards of decency required by this Court’s Eighth Amendment
jurisprudence.” Id., at 18.

															●“[I]mposing death on a prisoner, who, like Mr.
Madison, suffers from substantial memory deficits by virtue of
multiple stroke and resulting vascular dementia serves no
retributive or deterrent purpose.” Id., at 22.

															●“[E]xecuting an individual with no memory of
the underlying offense serves no retributive purpose.” Ibid. ●“[W]here the person being punished has no
memory of the commission of the offense for which he is to be
executed, the ‘moral quality’ of that punishment is lessened and
unable to match outrage over the offense.” Id., at
22–23.

															●“Mr. Madison’s severe memory impairments as a
result of vascular dementia render him incompetent to be executed
under the Eight Amendment.” Id., at 25 (quotation
altered).

															In sum, the body of the petition makes it clear
that review was sought on the question invited by the Dunn concurrence, and the thrust of the wording of the two questions was
the same. They read as follows:

															“1. Consistent with the Eighth Amendment, and
this Court’s decisions in Ford and Panetti , may the
State execute a prisoner whose mental disability leaves him without
memory of his commission of the capital offense? See Dunn v. Madison , [583 U. S. ___, ___ (2017) (Ginsburg, J.,
joined by Breyer and Sotomayor, JJ., concurring).]

															“2. Do evolving standards of decency and the
Eighth Amendment’s prohibition of cruel and unusual punishment bar
the execution of a prisoner whose competency has been compromised
by vascular dementia and multiple strokes causing severe cognitive
dysfunction and a degenerative medical condition which prevents him
from remembering the crime for which he was convicted or
understanding the circumstances of his scheduled execution? ”
Pet. for Cert. iii.

															With the exception of the final phrase in
question two (“or understanding the circumstances of his scheduled
execution”), both questions solely concern the effect of memory
loss on an Eighth Amendment analysis. The final phrase in question
two and certain passages in the petition, if read with an
exceedingly generous eye, might be seen as a basis for
considering whether the evidence in the state-court record shows
that petitioner’s dementia rendered him incapable of having a
rational understanding of the reason for his execution. But that is
the sort of factbound question on which we rarely grant review, see
this Court’s Rule 10, and it is questionable whether we did so
here.

															But whether or not the petition may be fairly
read to present that factbound question, it is a travesty to read
it as challenging the state-court order on the ground that the
state court erroneously believed that dementia cannot provide a
basis for a Ford / Panetti claim. There is no inkling
of that argument in the petition. Although the petition described
the state-court order at numerous places, the petition never
claimed that the order was based on an impermissible distinction
between dementia and other mental conditions. See, e.g., Pet. for Cert. ii, 2–3, 16. And in fact, there is a point in the
petition where such an interpretation of the state-court order
would surely have been mentioned if the petition had intended to
raise it as a ground for review. The petition noted that “courts
have recognized dementia and attendant cognitive decline and memory
impairment as a basis for a finding of incompetency to be
executed,” id., at 25, but the petition did not follow that
statement by claiming that the state court in this case took a
contradictory position.

															Because the petition did not raise—indeed, did
not even hint at—the argument on which the Court now grants relief,
the Court’s decision is insupportable.[ 2 ] It violates our Rule that “[o]nly the questions set out
in the petition, or fairly included therein, will be considered by
the Court.” See Rule 14.1(a).

															III

															Even if it were proper for us to consider
whether the order below was based on an erroneous distinction
between dementia and other mental conditions, there is little
reason to think that it was. After a full evidentiary hearing in
2016, the state court rejected petitioner’s Ford / Panetti claim based on a correct statement of
the holding of those decisions. It found that petitioner “ha[d] not
carried his burden [of showing] by a preponderance of the evidence
. . . that he . . . does not rationally
understand the punishment he is about to suffer and why he is about
to suffer it.” Order (Apr. 29, 2016), p. 10. The court’s order
went on to say that it “specifically [found] that Madison has a
rationa[l] understanding, as required by Panetti , that he is
going to be executed because of the murder he committed and a
rationa[l] understanding that the State is seeking retribution and
that he will die when he is executed.” Ibid. In concluding that the state court might have
drawn a distinction between dementia and other mental conditions,
the majority seizes upon the wording of the order issued after a
subsequent hearing in 2018. Ante, at 14. In that order, the
same judge wrote: “Defendant did not provide a substantial
threshold showing of insanity , a requirement set out by the
United States Supreme Court, sufficient to convince this Court to
stay the execution.” Order (Jan. 16, 2018), p. 1 (emphasis
added). The majority worries that the state-court judge might not
have applied the same standard in 2018 as he had two years earlier
and might have viewed “insanity” as something narrower than the
standard mandated by Ford and Panetti . This concern
is unfounded.

															Taken out of context, the term “insanity” might
not be read to encompass dementia, but in context, it is apparent
that the state court’s use of that term was based on the way in
which it was used in Ford and Panetti . The state
court did not simply refer to “insanity.” It referred to “insanity,
a requirement set out by the United States Supreme Court.” Thus, it
followed the term “insanity” with an appositive, which is a word or
phrase that renames the word or phrase that precedes it. In other
words, what the state court clearly meant by “insanity” was what
this Court termed insanity in Ford and Panetti . What
was that?

															In Ford , the Court held that the Eighth
Amendment prohibits the execution of a person who is “insane,” and
in the portion of Justice Marshall’s lead opinion that was joined
by a plurality, Justice Marshall equated insanity with a mental
condition that “prevents [a person] from comprehending the reasons
for the penalty or its implications.” 477 U. S., at 417.
Justice Powell, who provided the fifth vote for the decision, took
a similar position. See id., at 422–423 (opinion concurring
in part and concurring in judgment). In Panetti , which built
on the holding in Ford , the Court used the term in a similar
way. See 551 U. S., at 958–960. Accordingly, a defendant
suffers from “insanity,” as the term is used in Ford and Panetti , if the prisoner does not understand the reason for
his execution.

															Today’s decision does not reject this
interpretation of the state-court order; it says only that it is
vacating and remanding because it is “at the least unsure” whether
the state court used the term “insanity” in this way. Ante, at 14. The majority cites two reasons for its uncertainty, but both
are weak.

															First, the majority attributes to the state
court an interpretation of the term “insanity” that was advanced by
the State in this Court in its brief in opposition to the petition
for certiorari. Ante, at 15. In that submission, the State
argued that certiorari should be denied because petitioner had
sought relief in state court under the wrong provision of state
law, namely, Ala. Code §15–16–23 (2011), which authorizes the
suspension of the execution of an inmate who is “insane.” The State
argued that petitioner’s memory loss did not render him “insane”
within the meaning of this statute and that if he wished to argue
that the Eighth Amendment bars the execution of an inmate who
cannot remember his crime, he “should have filed a petition for
post-conviction relief” under Alabama Rule of Criminal Procedure
32.4. Brief in Opposition 11–12.

															The majority’s argument based on the State’s
brief in opposition suffers from multiple defects. For one thing,
nothing suggests that the state court rejected petitioner’s
application on the ground that he invoked the wrong provision of
state law; the State’s filing in the state court made no mention of
the argument set out in its brief in opposition filed here.
Moreover, if the state court had rejected petitioner’s application
on the ground that he moved under the wrong provision of state law,
it is doubtful that we could review that decision, for then it
would appear to rest on an adequate and independent state-law
ground. And to top things off, the majority’s argument distorts
what the State’s brief in opposition attempted to say about the
term “insane.” The State did not argue that a defendant who lacks a
rational understanding of the reason for his execution due to
dementia is not “insane” under Ala. Code §15–16–23. Instead, the
State’s point was that a defendant is not “insane” in that sense
merely because he cannot remember committing the crime for which he
was convicted.

															The majority’s other proffered basis for doubt
is that the State “repeatedly argued to the [state] court (over
Madison’s objection) that only prisoners suffering from delusional
disorders could qualify as incompetent under Panetti .” Ante, at 16. The majority, however, cites no place where the
State actually made such an argument. To be sure, the State, in
contending that petitioner was not entitled to relief under Ford and Panetti , argued strenuously that he was not
delusional. (The State made this argument because petitioner’s
counsel claimed that petitioner was in fact delusional and fell
within Ford and Panetti for that reason.[ 3 ]) But arguing, as the State did, that
petitioner was not entitled to relief because the claim that he was
delusional was untrue is not the same as arguing that petitioner
could be executed even if his dementia rendered him incapable of
understanding the reason for his execution. The majority cites no
place where the State made the latter argument in the state
court.[ 4 ] And even if the State
had made such an argument, what matters is the basis for the state
court’s decision, not what counsel for the State wrote or said.

															I add one more comment regarding the majority’s
uncertainty about the basis for the state-court decision: Our
decision two years ago in Dunn evinced no similar doubts.
There, we said that the state court “held that, under this Court’s
decisions in Ford and Panetti , Madison was en- titled
to relief if he could show” that he lacks a rational understanding
of the circumstances of his punishment. 583 U. S., at ___
(slip op., at 2) (quotation altered). And we said that the state
court “determined that Madison is competent to be executed
because—notwithstanding his memory loss—he recognizes that he will
be put to death as punishment for the murder he was found to have
committed.” Id., at ___ (slip op., at 4); see also ibid. (referring to the state court’s “finding that Madison
understands both that he was tried and imprisoned for murder and
that Alabama will put him to death as punishment for that crime”).
Why the majority cannot now see what it understood without any
apparent difficulty two years ago is hard to grasp.

															For all these reasons, what the Court has done
in this case cannot be defended, and therefore it is hard to escape
thinking that the real reason for today’s decision is doubt on the
part of the majority regarding the correctness of the state court’s
factual finding on the question whether Madison has a rational
understanding of the reason for his execution. There is no question
that petitioner suffers from severe physical and mental problems,
and the question whether he is capable of understanding the reason
for his execution was vigorously litigated below. But if the Court
thinks it is proper for us to reach that question and to reverse
the state court’s finding based on a cold record, it should own up
to what it is doing.

															*  *  *

															Petitioner has abandoned the question on which
he succeeded in persuading the Court to grant review, and it is
highly improper for the Court to grant him relief on a ground not
even hinted at in his petition. The writ should be dismissed as
improvidently granted, and I therefore respectfully dissent. Notes 1 Petitioner sought and
obtained a stay of execution based on this same argument. See
Application for Stay of Execution 2, 6 (moving the Court to stay
petitioner’s execution so that it could address the “substantial”
and “critical” question whether executing petitioner, “whose severe
cognitive dysfunction leaves him without memory of his commission
of the capital offense,” would violate the Eighth
Amendment). 2 The Court is unable to
cite a single place in the petition that makes any reference to the
argument that the state court failed to understand that dementia
could satisfy the Ford / Panetti test. 3 Petitioner’s papers
emphasized again and again that he suffers from delusions. See Pet.
for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb.
12, 2016), p. 1 (“Mr. Madison has long suffered from serious
mental illness, marked by paranoid delusions and other
disabilities”); id ., at 5 (“At Mr. Madison’s trial, Dr.
Barry Amyx established that Mr. Madison suffers from a delusional
disorder that has existed since he was an adolescent”); ibid. (“This well-documented history of paranoia was one of
the reasons Dr. Amyx concluded that Mr. Madison had a delusional
disorder in a paranoid, really a persecutory type” (internal
quotation marks omitted)); ibid. (“Dr. Amyx noted that Mr.
Madison exhibited delusional thinking about . . .
medication and believed that he was being used as a guinea pig in
medical experiments”); id. , at 6 (emphasizing a “more recent
observation” that “ ‘Mr. Madison consistently presented with
paranoid delusions’ ”); id. , at 8 (“Mr. Madison
exhibited delusional and disoriented behavior in June 2015”); id. , at 14 (“decades of delusional thinking and psychotropic
medications”); see also Pet. for Suspension in No. CC–85–1385.80
(C. C. Mobile Cty., Ala., Dec. 18, 2017), pp. 6–7 (detailing
similar statements). This line of argument fell apart when
petitioner’s own expert testified that he found no indication that
petitioner was “[e]ither delusional or psychotic.” Tr. 56 (Apr. 14,
2016). 4 Unable to cite any place
where the State made this argument to the state court, the Court
claims that the State did so in the Eleventh Circuit. Ante, at 6–7, n. 1. But even if that were so, it is hard to see what
that would have to do with the question whether the state court
thought that dementia could not satisfy the Ford / Panetti test. And in any event, the Court does
not fairly describe the State’s argument in the Eleventh Circuit.
The State’s Eleventh Circuit brief argued that merely suffering
from a mental condition like dementia is not enough to render a
prisoner incompetent to be executed; instead, the prisoner must
also establish that he lacks a rational understanding of the reason
for his execution. See Brief for Appellee in No. 16–12279 (CA11),
pp. 37–38 (Brief for Appellee) (“The fairest reading of the state
court’s opinion is that it assumed that dementia and memory loss
caused by strokes is a mental illness and went straight to the
rational understanding question. Thus, it is not that the trial
court refused to consider Madison’s claims pertaining to
dementia—Madison cannot point to any portion of the state court
order that says this—it is that the trial court correctly noted
that Madison failed to prove that any dementia interfered with
Madison’s ability to have a rational understanding of his
execution, including the reasons therefor”); id., at 27
(“The Supreme Court has not held that a petitioner can show
incompetence without demonstrating a mental illness or that
dementia and memory loss definitively preclude rational
understanding”); id., at 29 (“To the extent the state court
followed the lead of the Supreme Court, this Court, and the ABA and
required Madison to show that a mental illness prevented him from
having a rational understanding of his punishment, doing so was not
an unreasonable application of clearly established federal law”).
It is true that the State’s brief, in addressing the standard for
granting federal habeas relief under 28 U. S. C.
§2254(d), stated that this Court “ha[d] never held that dementia or
memory loss is sufficient to show a lack of rational
understanding,” Brief for Appellee 29, but that was because a claim
under §2254(d) must be based on a clearly established Supreme Court
holding. See Recording of Oral Arg. in No. 16–12279 (CA11, June 23,
2016), at  32:37–33:30 (State rejecting a suggestion that Panetti holds “if you don’t remember committing the crime at
all, and it is clear based on the medical testimony that you don’t
remember committing this crime, then you don’t have  a
rational understanding of the factual basis for the imposition of
the death penalty”: “First of all, under AEDPA deference, I think
that that is not the holding of Panetti . . . .  I think
under AEDPA deference, it’s pretty clear that the holding of Panetti is very narrow. . . .  I would say the holding
in Panetti is that documented mental illness that results in
a delusion has to be considered when talking about rational
understanding”); id., at 36:00–36:30 (“I think the Supreme
Court has never held that not remembering something is equivalent
to not having a rational understanding.  I think that is just
undeniably true.  And if AEDPA deference applies, then I don’t
think the state court could have been unreasonable in rejecting the
view that memory is required”).  The State did not argue
either that dementia cannot satisfy Ford and Panetti or that the state court based its decision on that ground. On the
contrary, Alabama wrote that “even if the trial court had
determined that dementia and severe memory loss—or even total
amnesia—are insufficient to meet the rational understanding test,
that finding would not contradict clearly established federal law.”
Brief for Appellee 29; see also id., at 30 (“Even assuming
the state court held, as a matter of law, that amnesia is not
sufficient to show a lack of rational understanding, that
determination was not unreasonable in light of clearly established
federal law”). The majority acknowledges that the State made this
concededly correct habeas argument, but then oddly writes it off as
an “additional” or alternative argument. Ante, at 7,
n. 1.  Yet, as the State’s brief and oral argument illustrate,
the State’s core contention was that the state court did not
unreasonably apply clearly established law under Panetti ’s
“very narrow” holding.  (And as we later held in Dunn ,
the State was correct.) The majority simply cannot
escape the inconvenient fact that the State never argued, as a
non-AEDPA matter, that peti-tioner could be executed even if his
dementia precluded a rational understanding.