In the case of Marcus Hardy, Warden v. Irving L. Cross (2011), the United States Supreme Court considered whether a prisoner's right to effective counsel was violated when his attorney failed to object to a judge's participation in plea negotiations, which is prohibited by Rule 11(c)(1) of the Federal Rules of Criminal Procedure. The Seventh Circuit Court had ruled that this failure constituted ineffective assistance and granted habeas relief on those grounds. However, upon review, the Supreme Court reversed this decision unanimously with Justice Scalia delivering the opinion for an eight-member majority and Justice Kennedy concurring separately but agreeing with judgment reversal. The court held that even if there was deficient performance by defense counsel under Strickland v Washington standard due to non-objection against trial judge’s involvement in plea discussions; it did not automatically establish prejudice necessary for ineffective-assistance claim as per Roe v Flores-Ortega precedent because defendant must show reasonable probability that outcome would have been different without such errors i.e., he would have gone to trial instead of pleading guilty.

In the dissenting opinion for Marcus Hardy, Warden v. Irving L. Cross, Justice Scalia argued that the majority's decision to grant habeas corpus relief was incorrect because it failed to defer sufficiently to state court decisions as required by federal law. He contended that the Illinois Appellate Court’s determination of harmless error in this case was not unreasonable and thus should have been respected under AEDPA (Antiterrorism and Effective Death Penalty Act). Scalia criticized the majority for reevaluating evidence and making its own subjective judgment about witness credibility, which he believed overstepped their role as a reviewing body. Furthermore, he disagreed with their interpretation of precedent regarding what constitutes a "structural" error in trial proceedings; according to him, they had expanded this concept beyond its original meaning.