dissenting:
I agree with most of Judge King’s fine opinion. I agree that a “clear, settled rule” existed in South Carolina prior to Green’s case. Ante at 229. I agree that this rule provided that a defendant was entitled to a new trial (1) if he had wasted a peremptory challenge on a juror who should have been excused for cause and (2) had exhausted his peremptory challenges before the jury was impaneled. I agree that Green satisfied both portions of this rule. I agree that the Supreme Court of South Carolina’s holding that Green must demonstrate an additional element — deprivation of a fair trial, or actual prejudice— constituted a change in this established rule. And I agree that such a change, unless reasonably foreseeable, requires reversal, because if Green could not foresee the change, he would not have had the opportunity to develop at trial a record that could support a finding of prejudice. These are the difficult questions presented by the case; the majority persuasively and correctly deals with all of them. Yet it slips in its ultimate holding, somehow finding that Green could have foreseen the abolition of this settled state rule in his case. From that ultimate holding, I must respectfully dissent.
As the majority recognizes, more than eighty years ago, the Supreme Court of South Carolina established the clear rule at issue here, a rule under which a petitioner need not demonstrate actual prejudice. See State v. Sanders, 103 S.C. 216, 88 S.E. 10, 12 (1916). Moreover, South Carolina’s highest court has followed that rule on numerous occasions. See, e.g., State v. Short, 333 S.C. 473, 511 S.E.2d 358, 360 (1999); State v. South, 285 S.C. 529, 331 S.E.2d 775, 778 (1985); State v. Elmore, 279 S.C. 417, 308 S.E.2d 781, 784 (1983); State v. Hardee, 279 S.C. 409, 308 S.E.2d 521, 524 (1983); State v. Anderson, 276 S.C. 578, 281 S.E.2d 111, 112 (1981); State v. Britt, 237 S.C. 293, 117 S.E.2d 379, 385-86 (1960); State v. Gregory, 172 S.C. 329, 174 S.E. 10, 11 (1934); State v. King, 158 S.C. 251, 155 S.E. 409, 420 (1930); see also Moore v. Jenkins, 304 S.C. 544, 405 S.E.2d 833, 835 (1991) (finding “prejudicial *232as a matter of law” the method of allotting peremptory strikes in a multiple-defendant case by which each party, rather than each side, exercised the statutorily-mandated number of strikes); William Shepard McAninch & W. Gaston Fairey, The Criminal Law of South Carolina 146 (2d ed. 1989) (“South Carolina treats the wrongful deprivation of a peremptory challenge as error per se so long as all peremptory challenges are exhausted.”). As the majority observes, “it is immediately apparent that no decision, prior to Green’s, required a demonstration that the defendant had been deprived of a fair trial; indeed, the [Supreme Court of South Carolina in] Green ... acknowledged as much.” Ante at 227. Nevertheless, the majority concludes that prior to Green’s case, the Supreme Court of South Carolina “suggested” a change in this long established rule, making that change “foreseeable” by Green.
How is that possible? The majority’s conclusion seems to me to be paradoxical. I have not found a single case (and the majority cites none) which has held, as the majority does here, that a state’s supreme court, after establishing and for eighty years invariably following a “clear, settled rule,” has somehow simultaneously “suggested” a radical change in that rule. A state rule is not clear and settled for due process purposes until enunciated by the state’s highest court. When “there [has] been no previous” ruling on point by that court, a litigant must “assume the risk that the ultimate interpretation by the highest court might differ from its own.” See Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 682 n. 9, 50 S.Ct. 451, 74 L.Ed. 1107 (1930). Indeed, even if a litigant relies on a valid state court decision, the state’s highest court may overrule that decision without violating the litigant’s due process rights. But when, as here, a state’s highest court itself has established and for many years so consistently adhered to a rule such that it is “clear” and “settled,” how can a litigant, consistent with Due Process, be required to “assume the risk” that the highest court will refuse to follow its own established rule in his case? The answer is that he cannot.
Rather, as the Supreme Court noted in Brinkerhoff-Faris, when a state’s highest court has clearly established a rule as “the settled law of the State, ... it would ... be[ ] entirely futile” for a litigant to pursue a defense based on the possibility that the rule might be different in his case. 281 U.S. at 678-79, 50 S.Ct. 451. Indeed, it would run contrary to our expectation that litigants assert only potentially meritorious arguments to require them to present a defense on the assumption that a “clear, settled rule” established and consistently followed by the state’s highest court might change. Yet such is the effect of the majority’s holding.
To support its conclusion that the Supreme Court of South Carolina “suggested” a changé in its own clear and settled rule requiring no showing of prejudice, the majority relies on State v. Weaver, 58 S.C. 106, 36 S.E. 499, 501 (1900), and State v. Plath, 277 S.C. 126, 284 S.E.2d 221, 227 (1981). But the Supreme Court of South Carolina decided Sanders, establishing this rule, sixteen years after Weaver, thus implicitly overruling any holding to the contrary in Weaver. Moreover, just last year in Short, the Supreme Court of South Carolina carefully explained that Plath did not govern cases like that at hand. See 511 S.E.2d at 360-61 (explaining that Plath did not address timely peremptory challenges improperly denied during the normal course of voir dire, but rather addressed only belated peremptory challenges, asserted after the jury had been impaneled). In Short, South Carolina’s highest court not only extended its rule requiring no showing of actual prejudice to belated peremptory challenges, but also, and more importantly for our purposes, emphasized that it had always followed and continued to follow this well-established rule for timely peremptory challenges. Id.
*233In sum, the two cases — Weaver and Plath — that form the entire basis of the majority’s “foreseeability” holding do not provide any evidence that the Supreme Court of South Carolina contemplated changing its well-established rule to require an additional element. Weaver is 100 years old and was implicitly overruled by South Carolina’s highest court more than 80 years ago; as for Plath, the Supreme Court of South Carolina has expressly stated that Plath never applied to or governed cases like that at hand. The majority’s reliance on these two non-controlling cases to hold that Green should have foreseen a radical change in well-established state law is directly contrary to the Supreme Court’s express refusal to lend non-controlling cases such weight. See Bouie v. City of Columbia, 378 U.S. 347, 357-59, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (rejecting contention that indications of change in state civil trespass law should have led a litigant to anticipate a change in criminal trespass law).*
In this case, no one disputes that the state trial court clearly erred in failing to disqualify a juror for prejudice on the basis of his racial bias, and today’s opinion correctly holds that under the clear and settled state rule in effect at the time, that error warranted a new trial. And yet the majority looks to eases that the state’s highest court has either overruled or deemed non-controlling to find that even though the trial court erred, even though on appeal the state rule was changed only for this one petitioner, still his counsel could have foreseen, from review of such non-controlling case law, that the state rule could change. I cannot vote to uphold a capital conviction when a defendant has not had a full opportunity to demonstrate prejudice in the composition of the jury that convicted him. I therefore respectfully dissent.
The majority nevertheless maintains that hints of a change in law must necessarily come in non-controlling case law. I respectfully suggest that a hint could lie in a subsequent case on point that declined to reach the relevant issue, or a subsequent case on point that followed doctrine but suggested misgivings in dicta, or a subsequent case on point from a lower court that criticized the relevant rule of law.